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TMI Blog2017 (3) TMI 1599X X X X Extracts X X X X X X X X Extracts X X X X ..... and Najmi Waziri, JJ. Shri Deepak Anand, Jr. Standing Counsel, Pratap Singh Ahluwalia with Navneet Tripathi and Deepak, Advocates, for the Appellant. Shri C. Hari Shankar, Senior Advocate with S. Sunil, Jagdish N. and Mukul Dhawan, Advocates, for the Respondent. JUDGMENT [Judgment per : S. Ravindra Bhat, J. (Oral)]. - In all these appeals the assessee had defaulted and had not paid the excise duty within the stipulated period. It sought to utilise the Cenvat credit due to it towards payment of duty. Restrictions were imposed by Rule 8(3A) of the Central Excise Rules, 2002 in this regard. The adjudicating authority applied Rule 8(3A) and proceeded to impose penalty as well. The Commissioner on appeal in some of these cases merely reduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Rules, 2002 has been declared unconstitutional, consequently proceedings against the appellant are not sustainable. Further I find that appellant has contravened the provisions of Central Excise Rules, 2002, therefore, general penalty under Rule 27 of Central Excise Rules, 2002 is imposable. Therefore, I impose penalty under Rule 27 of Central Excise Rules, 2002 on the main appellant i.e. M/s. Space Telelink Ltd. of ₹ 5,000/- (Rupees Five thousand only). Further, I hold that the Managing Director has not contravened, penalty on Managing Director are set aside." 3. Likewise, in other appeals as well, the claims of Cenvat credit was held to be admissible and the penalty imposed was set aside. 4. The revenue urge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing credit of duty already paid by him. " The reasoning of the Gujarat High Court in Indsur Global Ltd. v. Union of India, 2014 (310) E.L.T. 833, quoted above, was upheld by A.R. Metallurgicals P. Ltd. v. CESTAT, Chennai 2015 (322) E.L.T. 49 (Mad.); Sandley Industries v. Union of India 2015 (326) E.L.T. 256 (P&H) and ATV Projects India Ltd. v. Union of India, 2016 (341) E.L.T. 603 (All.) 6. This Court also notices that the Indsur Global Ltd. {supra) decision had cited and relied upon the decision in Eicher Motors Ltd. v. Union of India 1999 (106) E.L.T. 3 (S.C.) as well as upon the decision in Collector v. Dai Ichi Karkaria Ltd. 1999 (112) E.L.T. 353 (S.C.) In Dai Ichi (supra), the Court held as follow : "17. It is clear f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as take paid. 7. The revenue has argued that the Supreme Court has entertained a Special Leave Petition against the judgment of the Gujarat and Madras High Courts and furthermore, granted a stay of proceedings and that in these circumstances, the law declared in those judgments are no longer applicable. This submission is fallacious because in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association (1992) 3 SCC 1, the Supreme Court had observed as follows : " While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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