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TMI Blog2018 (1) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... edit can be utilized but under the said provisions, the goods are to be cleared on consignment wise, therefore, the goods are liable for confiscation. As the goods are not available for confiscation and not cleared under any bond, therefore, redemption fine cannot be imposed on the appellant - redemption fine set aside. Penalties u/r 25 & 26 of the CER, 2002 - Held that: - As the penalty under these rules can be imposed subject to the condition of section 11AC of the Act but the ingredients of section 11AC are missing. Therefore, the penalties under Rule 25 and 26 are not imposable on the appellant. Penalty u/r 27 - Held that: - as per Rule 8 (3A) of Central Excise Rules, 2002 as they were not paying duty on consignment wise, in that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsignment wise during the period of default without utilizing the Cenvat credit account. Therefore, the proceedings were initiated against the appellant as they have utilized the Cenvat credit account during the period of default for payment of duty. In these sets of facts, a show cause notice was issued to the appellants to demand duty on consignment wise along with interest and to confiscate the goods cleared during the period of default and to impose penalty on both the appellants under Rule 25 26 Central Excise Rules, 2002. The matter was adjudicated, the demand of duty was confirmed along with interest and the goods were held liable for confiscation and the penalties on both the appellants were imposed under Rule 25 26 Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . and the Hon ble Delhi High Court in the case of Space Telelink Limited (supra), held that although the decision in the case of Indsur Global Ltd. has been stayed by the Apex Court but the decision of the Hon ble High Court is the law unless and until, the same is set aside, is not binding on us, therefore, the demands are to be set aside. Therefore, we hold that since utilization of Cenvat credit account, during the default period has been declared ultra vires, therefore the appellant has not violated the provisions of Rule 8 (3A) of Central Excise Rules, 2002. If the availability of Cenvat credit is taken into account, in that circumstance, no demand is sustainable against the appellant. Therefore, the demands confirmed by the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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