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TMI Blog2011 (6) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Tribunal. - Held that: - If this is the grievance, the petitioner should have approached the Tribunal, as he has got statutory right of appeal under Section 35 B of the Central Excise Act, 1944. - it is to be noted that this Court, while entertaining the writ petition, has granted interim order of stay and the same is also continued till now - Decided in the favor of assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... ced to 5% on the value of exempt products. 2. Under this background, it was submitted that whenever Gear Box Assembly and Gear Motor Assembly are cleared for Wind Mill companies, then an amount equal to 10% should be paid, since the petitioner did not maintain separate records for availing Cenvat on inputs relatable to manufacture of dutiable final products. When the matter stands thus, the Government had amended Rule 6 of CCR, 2004, with effect from 01.04.2008, by bringing the concept of proportionate reversal into CCR, 2004, for the first time. By doing so, the Government had also provided three alternatives, which are extracted as under:- a) Maintain separate records for inputs required for manufacture of Excisable Products. b) Do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of 10% of the value of exempt goods again. Thereafter, the matter was adjudicated upon and finally, the respondent passed an order in Original No.6/2009, dated 16.12.2009, confirming the demand of differential Excise Duty of Rs.1,00,28,716/- and levying penalty of Rs.5,00,000/-. 4. Aggrieved by the said order, when the petitioner preferred a writ petition before this Court, the said writ petition was dismissed and as against that, the petitioner preferred a writ appeal unsuccessfully. The Division Bench of this Court, by dismissing the writ appeal, directed the petitioner to file a statutory appeal within two weeks. Accordingly, the petitioner filed an appeal before the Tribunal and the Tribunal, by final order No.1165/2010, dated 08.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent submitted that the petitioner's company had contravened Rule 6(3)(i) of CCR, 2004, in as much as they had not discharged the amount @ 10% of the value of the exempted final products at the time of clearance of exempted final products on which cenvat credit was availed by them. Secondly, it was contended that the writ petition has been wrongly filed before this Court, despite an alternative remedy available to them in the form of appeal before the CESTAT, Chennai, under Section 35 B of the Central Excise Act, 1944 and on that basis, he prayed for dismissal of the present writ petition. 7. Heard the learned counsel appearing on either side and perused the materials available on record. 8. The petitioner's Company are engaged in the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods or pay the amount equivalent to the Cenvat Credit. 9. Be that as it may, when this controversy was under challenge before this Court, this Court, by dismissing the writ petition on the earlier occasion, directed the petitioner to approach the Appellate Authority. Aggrieved by the said direction, the petitioner has preferred an writ appeal and even in the writ appeal, the Division Bench of this Court, by dismissing the writ appeal, directed the petitioner to approach the Tribunal and thereafter, when the petitioner approached the Tribunal, the Tribunal remanded the matter back to the respondent for fresh adjudication. On remand, the respondent has reconfirmed the earlier order, which is impugned in the present writ petition. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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