TMI Blog2018 (2) TMI 1755X X X X Extracts X X X X X X X X Extracts X X X X ..... n 35-G (2) of the Central Excise Act, 1944 has been filed by the Revenue against order dated 11.01.2017 passed by the Customs, Excise Service Tax Appellate Tribunal, New Delhi, by which the learned Appellate Tribunal allowed the appeal of the assessee filed against order dated 26.07.2012 passed in Order-in-Appeal by the Commissioner (Appeals), Customs Central Excise, Indore, whereby the assessee was denied benefit of CENVAT credit on input and input services. 2. Learned counsel for the appellant has made a statement 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 Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order dated 30.03.2007 (Annexure-C) First Appellate Authority Commissioner (Appeals), Customs Central Excise, Indore allowed the CENVAT Credit to the tune of ₹ 27,57,759/- and upheld the demand to the tune of ₹ 1,16,280/-. 3. The Revenue 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. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ujarat 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 unavoidable that it would be virtually impossible for an assessee who is trapped in the whirlpool to get out of his financial difficulties. It is quite apart from being availing credit of duty already paid by him. The reasoning of the Gujarat Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 concerned with credit that has been validly taken, and its benefit is available to the manufacturer without any limitation in time or otherwise unless the manufacturer itself chooses not to use the raw material in its excisable product. The credit is, therefore, indefeasible. It should also be noted that there is no co-relation of the raw material and the final product; that is to say, it is not as if credit can be taken only on a final product that is manufactured out of the partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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