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TMI Blog2018 (7) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... (12) TMI 585 - GUJARAT HIGH COURT] has held as ultra virus the provision of Rule 8(3A) - Similar view has been expressed by the Delhi High Court in the case of Space Telelink Limited [2017 (3) TMI 1599 - DELHI HIGH COURT]. The Delhi High Court has further held that even though the Gujarat High Court decision is stayed by the Apex Court in the appeal filed by Revenue, this does not deface the underlying basis of the judgement itself. The Tribunal in the case of Ess Ess Kay Engg. Co. Pvt. Ltd. [2018 (1) TMI 257 - CESTAT CHANDIGARH] has already taken the view that duty demands are not justified and also the penalties. Demand not justified - appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... mand was confirmed alongwith interest and penalty. Aggrieved by the impugned order, present appeals stand filed. 3. With the above background, heard Sh. Arun Goyal, ld. Advocate for the appellant and Sh. P. Juneja, ld. AR for the Revenue. 4. The argument advanced on behalf of the appellant is summarised below: (i) Ld. Advocate submitted that during the period of default, the appellant was entitled to make use of this cenvat credit for payment of duty. Such view has been taken by the Hon'ble Gujarat High Court in the case of Indsur Global Ltd. vs. Union of India -2014-TIOL-2115- HC-AHM-CX. Hon'ble Gujarat High Court held as ultra virus the provision of Rule 8(3A) of the Cenvat Credit Rules, 2002. Even though the Revenue has challenged th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra virus the provision of Rule 8(3A). Similar view has been expressed by the Delhi High Court in the case of Space Telelink Limited (supra). The Delhi High Court has further held that even though the Gujarat High Court decision is stayed by the Apex Court in the appeal filed by Revenue, this does not deface the underlying basis of the judgement itself. By following the above decision, the Tribunal in the case of Ess Ess Kay Engg. Co. Pvt. Ltd. (supra) has already taken the view that duty demands are not justified and also the penalties. The observations of the Tribunal is reproduced below: "6. Considering the basis of show cause notice is that during the defaulted period, the appellant has paid duty by utilizing cenvat credit account. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red under any bond, therefore, redemption fine cannot be imposed on the appellant in the light of larger bench decision in the case of Shiv Kripa Ispat Pvt. Ltd. -2009 (235) ELT 623 (Tri. LB) = 2009-TIOL-388-CESTAT-MUM-LB. Therefore, redemption fine imposed on the appellant is set aside. 8. We find that the penalties have been imposed on the appellant under Rule 25 & 26 of the Central Excise Rules, 2002. 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. Therefore, the penalties imposed on the appellants under Rule 25 & 26 are set aside." 8. In view of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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