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Commissioner, CGST & Central Excise Versus Shri Dheeraj Lulla

2018 (2) TMI 921 - MADHYA PRADESH HIGH COURT

Maintainability of petition - grant of stay - Section 35-G (2) of the Central Excise Act, 1944 - Held that: - an order keeping in abeyance the judgment of a lower Court or authority does not deface the underlying basis of the judgment itself, i.e., its reasoning - appeal dismissed - decided against Revenue. - CEA No. 41 of 2017 - Dated:- 6-2-2018 - P. K. Jaiswal And Virender Singh, JJ. Shri Prasanna Prasad, learned counsel for the appellant ORDER This appeal under Section 35-G (2) of the Central .....

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tatement at Bar that the issue involved in this appeal is squarely covered by the order dated 31.01.2018 passed in Central Excise Appeal No.32/2016 (Commissioner, Customs, Central Excise & Service Tax, Ujjain v. Vikram Cement Limited) and therefore, the present appeal be disposed of in terms of the aforesaid order and the aforesaid decision of this Court shall apply mutatis mutandis in the Central Excise Appeal also. 3. Order dated 31.01.2018 passed in Central Excise Appeal No.32/2016 (Commi .....

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nd dismissed the appeal filed by the Revenue. 2. Facts of the case are that respondent - M/s. Vikram Cement are engaged in the manufactures of Cement & Clinker falling under Sub-Heading No.25.23 of the schedule to the Central Excise Tariff Act, 1985 (5 of 1986). They are availing CENVAT Credit facility on inputs capital goods and input services under Rules 2 and 3 of the CENVAT Credit Rules, 2004. On the basis of departmental audit carried out in September, 2005, it was alleged that several .....

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aggrieved by the aforesaid order, challenged the same by filing appeal before the learned Appellate Tribunal. Credit has been taken as distributed by the ISD and pertains to various activities intimately connected with the manufacture and sale of cement through depots, C&F agents etc. Such services have been allowed as input services and are squarely covered by several decisions including Gujarat, Allahabad, Punjab & Haryana, and Madras High Courts - (1) A.R. Metallurgicals P. Ltd. v. CE .....

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v. Church of South India Trust Association reported in (1992) 3 SCC 1. The learned Appellate Tribunal has held that issue involved before the Tribunal is squarely covered by a decision of the Tribunal in the case of Cadile Health Care v. CCE, Ahmedabad reported in 2010 (17) STR 134 (Tribunal Ahmedabad) and held that denial of credit for these services is not legally sustainable and dismissed the appeal of the Revenue. 4. Shri Prasanna Prasad, learned counsel for the appellant has submitted that .....

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at High Court as well as other High Courts. Gujarat High Court took note of the revenue's contention with regard to the justification of Rule 8 (3A). It was of the opinion that the restrictions imposed under the Rule were unreasonable to the extent that it only required a default, irrespective of the extent or nature of the default, and consequently, excise duty had to be paid without availing CENVAT Credit. The High Court further reasoned it leads to a situation so harsh and a position so u .....

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Ltd. v. Union of India 2016 (341) ELT 603 (Allahabad). 6. On due consideration of the arguments of the learned counsel for the appellant - Department, so also the fact, which has not been disputed by the learned counsel for the Revenue, that the matter has been decided and appeal has been dismissed by the Delhi High Court in the case of Principal Commissioner of Central Excise, Delhi-I v. Space Telelink Limited reported in 2017 (355) ELT 189 (Delhi) by giving following reasons in paragraphs No.6 .....

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m in the production of an excisable product immediately it makes the requisite declaration and obtains an acknowledgment thereof. It is entitled to use the credit at any time thereafter when making payment of excise duty on the excisable product. There is no provision in the Rules which provides for a reversal of the credit by the excise authorities except where it has been illegally or irregularly taken, in which event it stands cancelled or, if utilised, has to be paid for. We are here really .....

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rial to which the credit is related. The credit may be taken against the excise duty on a final product manufactured on the very day that it becomes available. 18. It is, therefore, that in the case of Eicher Motors Ltd. v. Union of India [1999(106) ELT 3] this Court said that a credit under the MODVAT scheme was as good as tax paid." 7. The revenue has argued that the Supreme Court has entertained a Special Leave Petition against the judgment of Gujarat and Madras High Courts and furthermo .....

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Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter .....

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