TMI Blog2018 (4) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... uestions, nor just arriving at answers. The stand of the writ petitioner is that the revenue has not questioned the legality of the sale dated 22.03.2013 and the rental agreement. In the counter affidavit it has been stated that the revenue has not accepted the transaction as genuine at any point of time. If according to the respondent, the sale dated 22.03.2013 is not genuine, the question of deemed removal of the goods will not even arise. The petitioner has made out a convincing case for bye-passing the statutory alternative remedy available to it and for directly invoking the jurisdiction of this Court - matter is remitted to the file of the respondent for fresh consideration in accordance with law - petition allowed by way of rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner herein is either liable to reverse the credit proportionate to the actual cenvat credit taken to the extent of usage or pay the duty on the transaction value of the said goods. 3.Therefore, the respondent issued show cause notice No.6/2016/CE dated 21.12.2016. In response to the said show cause notice, the petitioner herein submitted their written submissions dated 16.02.2017. A copy of the written submissions as well as the list of authorities relied upon by the petitioner during personal hearing are enclosed in the typed set of papers. Thereafter, the impugned order dated 31.10.2017 came to be passed confirming the proposals made in the show cause notice. Questioning the same, this writ petition has been filed. 4.Heard Shri.N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the department as projected in the show cause notice is that in view of the deemed removal of the capital goods from the factory premises of the petitioner as per the sale invoice dated 22.03.2013 and the leasing back only with effect from 01.04.2013, the petitioner is liable to reverse the cenvat credit availed by them. The petitioner in response pointed out that the capital goods were never removed from the factory premises. In this regard, great reliance was placed down on the decision of the Hon'ble Division Bench of this Court reported in 2015 (323) E.L.T 290 (Mad) (Commissioner of C.EX., Tiruchirappalli V. CESTAT, Chennai) 9.In the said case, questions of law similar to the one raised in this writ petition were projected for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory premises and, therefore, the said rule is not applicable to the case of the assessee. 18.The above is the view succinctly expressed by the Allahabad High Court in Hero Motors case (supra). This Court is in agreement with the view expressed by the Allahabad High Court in the above-cited decision and the above decision is squarely applicable to the facts of the present case. In view of the above, the interpretation with regard to Rule 3 (5) of CCR, 2004, as made by the Tribunal in the present case is fully justified and it calls for no interference at the hands of this Court. 10.In the affidavit filed in support of the writ petition, it had been specifically pleaded that the aforesaid decision of the Division Bench of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be invalid and without jurisdiction. If the proceedings are without jurisdiction, the question of applying the rule with regard to the exhaustion of alternative remedy can be dispensed with. 13.This Court is of the view that the petitioner has made out a convincing case for bye-passing the statutory alternative remedy available to it and for directly invoking the jurisdiction of this Court. There is one other aspect of the matter. The stand of the writ petitioner is that the revenue has not questioned the legality of the sale dated 22.03.2013 and the rental agreement. In the counter affidavit it has been stated that the revenue has not accepted the transaction as genuine at any point of time. If according to the respondent, the sal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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