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2024 (6) TMI 992 - HC - Central ExciseAvailment of Cenvat Credit for clearance of rejected Capital Goods along with their manufactured product - Rule 8 and Rule 8(3A) of the Cenvat Credit Rules, 2002 - matter lis pendens - HELD THAT - The learned Tribunal has also allowed the assessee s appeal following the decision by which the portion of Rule 8(3A) of the Central Excise Rules, 1944 was struck down by the High Court of Gujarat in the case of INDSUR GLOBAL LTD. VERSUS UNION OF INDIA 2 2014 (12) TMI 585 - GUJARAT HIGH COURT . The revenue had filed the said judgment before the Hon ble Supreme Court in Special Leave to Appeal No. 16523 of 2015 and by order dated 24.9.2015 the Hon ble Supreme Court has stayed the judgment of the High Court of Gujarat in the case of UNION OF INDIA VERSUS INDSUR GLOBAL LTD. 2014 (11) TMI 1101 - SC ORDER . The matter is now pending before the Hon ble Supreme Court. Therefore, the best course open would be for the Tribunal to wait for the decision of the Hon ble Supreme Court and then take a decision in the matter. The order passed by the learned Tribunal is set aside and the appeal is restored to the file of the learned Tribunal and the matter shall be kept pending and taken up for consideration and decided after the judgment of the Hon ble Supreme Court - appeal allowed.
Issues:
The appeal filed by the revenue u/s 35G of the Central Excise Act, 1944 against the order passed by the Tribunal in Excise Appeal No. 558 of 2010 raises the following substantial questions of law for consideration: a) Availment of Cenvat Credit for clearance of rejected Capital Goods: The main issue is whether the availment of Cenvat Credit for clearance of rejected Capital Goods along with their manufactured product by the respondent is irregular due to the absence of specific provisions in Rule 8 and Rule 8(3A) of the Cenvat Credit Rules, 2002 for payment of Excise Duty at the time of removal of each consignment. The Tribunal's decision was influenced by the High Court of Gujarat's ruling in the case of Union of India Vs. Indsur Global Ltd, which is now pending before the Hon'ble Supreme Court. b) Entitlement to Cenvat credit for clearance of rejected Capital Goods: Another issue raised is whether the Respondent is entitled to Cenvat credit for clearance of rejected Capital Goods along with their manufactured product. c) Effect of SLP filed before the Hon'ble Supreme Court: The question arises whether the Tribunal erred in not recognizing that once a Special Leave Petition (SLP) has been filed before the Hon'ble Supreme Court and entertained, the Judgment of the High Court is in jeopardy and subject to change until determined by the final court. The issue of finality is highlighted in light of ongoing litigations against the revenue in various High Courts pending before the Hon'ble Supreme Court. d) Statute of the issue for the relevant period: Lastly, the Tribunal's decision is questioned regarding the statute of the issue for the relevant period, considering the unsettled nature of judgments against the revenue in different High Courts pending before the Hon'ble Supreme Court. The High Court, after hearing the arguments from both sides, decided to set aside the Tribunal's order and restore the appeal to the Tribunal's file. The matter is to be kept pending until the judgment of the Hon'ble Supreme Court in Special Leave to Appeal No. 16523 of 2015 is delivered. The substantial questions of law remain open for future consideration.
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