TMI Blog2019 (3) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... ted:- 21-2-2019 - Mr. Justice T.S. Sivagnanam And Mrs. Justice V. Bhavani Subbaroyan For the Appellant : Mr.Raghavan Ramabadran For the RR2 to 4 : Mr.A.P.Srinivas, Senior Standing Counsel JUDGMENT T.S.SIVAGNANAM, J. This appeal has been filed by the appellant/assessee under Section 35G of the Central Excise Act, 1944, challenging the order of the Larger Bench of the Customs, Excise and Service Tax Appellate Tribunal (Larger Bench), Chennai (for brevity the Tribunal ) in Misc.Order No.430 of 2008, dated 10.10.2008. 2.The above appeal has been filed raising the following substantial questions of law, which was admitted on 12.01.2009:- (i) Whether the 1st respondent is right in denying the benefit of duty f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vas, learned Senior Standing Counsel for the respondent. 4.The learned counsel on either side fairly submit that the questions of law raised in this appeal were considered by us in the case of M/s.Lakshmi Machine Works Limited vs. The Customs, Excise and Service Tax Appellate Tribunal, Chennai and Another [ C.M.A.Nos.2197 to 2201 of 2005: dated 26.09.2018]. In the case of M/s.Lakshmi Machine Works Limited (supra), there were three substantial questions of law, which were raised for consideration of which, we find substantial question of law nos.1 and 2 would cover the questions raised before us in this appeal. 5.In the said case, we took note of a decision of the Division Bench of the High Court of Karnataka in the case of CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used, it was not removed as such and when it was removed to EHTP unit again, they have no liability to pay the credit. This aspect has been completely missed by the authority. They proceeded on the assumption that user industry thereby mean EHTP unit was not bringing excisable goods directly from the factory of manufacture or warehouse and therefore they are not eligible for exemption. In the light of the aforesaid Notification which granted exemption, it is very clear that EHTP unit is entitled to exemption of payment of duty. Therefore, the assessee rightly availed the CENVAT credit and then reversed it when those goods were moved to EHTP unit and claimed refund. Therefore, the said question of law is answered in favour of the assessee an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t another Division Bench of this Court in the case of Commissioner of GST Central Excise, Chennai South Commissionerate vs. M/s.Velvette International Pharma Products Ltd., (Herbal Division) Chennai-49 [C.M.A.Nos.1093 and 1046 of 2018 dated 20.06.2018], remanded a similar issue for a fresh consideration before the Tribunal. However, we do not have the benefit of the judgment of the Tribunal. In any event, we do not express any opinion on the merits of the case and it is for the Tribunal to take note of the facts and circumstances of the case, decide the matters on the applicability of the law laid down in the case of Solectron Centum Electronics Ltd. and take a fresh decision in the matters on merits and in accordance with law. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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