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TMI Blog2021 (5) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... adras High Court. The contention of the petitioner's counsel is that the respondent is squarely bound by the decision rendered by the Madras High Court. It is not open to the respondent to disregard the aforesaid binding decision rendered by the Division Bench in M/s.Dalmia Cements Case [ 2015 (7) TMI 267 - MADRAS HIGH COURT ]. More over, the Central Board of Excise and Customs has mandated that the adjudicating authority shall decide the cases falling within their jurisdiction in that light. The order impugned in the writ petition is quashed. The matter is remitted to the file of the respondent. The respondent will bear in mind the Circular No. 1063/2/2018-CX dated 16.02.2018 issued by the Central Board of Excise and Customs, while dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 confirming the proposal set out in the show cause notice. Questioning the same, the petitioner filed W.P.(MD)No.2131 of 2018. Vide order dated 23.02.2018, the order passed by the respondent was set aside and the matter was remitted to the file of the respondent to pass orders afresh and in accordance with law. The respondent was also directed to afford an opportunity of personal hearing to the petitioner herein. Post remand, the petitioner was afforded an opportunity of hearing. But the adjudicating authority chose to reiterate the earlier stand. The impugned order dated 28.09.2018 came to be passed once again confirming the proposals set out in the show cause notice. The same is assailed in the writ petition. 3.The respondent has filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emoval' contemplates shifting of a thing from one place to another. In other words, the statute contemplates physical movement of goods from one place to another. 6.The learned counsel would further point out that the Division Bench of the Madras High Court, in the decision reported in 2015 (323) E.L.T. 290 (Mad.) (Commissioner of C.EX., Tiruchirapalli, vs. CESTAT, Chennai) , had also taken the very same view. Paragraph Nos. 15, 16, 17 18 of the said decision read as follows:- 15.On the questions of law framed above, at the outset, it is brought to the notice of this Court that the decision of Majestic Auto Case (supra), which was relied upon by the jurisdictional Commissioner has since been reversed by the Allahabad High Court in Hero ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envat Credit Rules, 2004, we find that Rule 3(5) only speaks about the removal of goods under cover of invoice referred to in Rule 9 on inputs or capital goods on which cenvat credit has been taken and if such goods are removed as such from the factory or provider of output service, shall be liable to pay an amount equal to the credit availed in respect of such inputs or capital goods. 17.In this case, we find there is no removal of goods under cover of invoice as provided under Rule 9 of the Cenvat Credit Rules, 2004 and there is nothing in Rule 3(5) of the Cenvat Credit Rules, 2004 to invoke the deeming fiction as insisted by the adjudicating authority. The language of Rule 3(5) is plain and simple. When the inputs or capital goods on whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall decide the cases falling within their jurisdiction in that light. The learned counsel would also draw my attention to the decision of the Supreme Court reported in 1 983 (13) E.L.T 1342 (S.C) (East India Commercial Co. Ltd., Calcutta Vs. Collector of Customs, Chennai) , in which, it was held that the law declared by the highest Court in the State is binding on authorities or tribunals under its superintendence and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the proceedings of the authority themselves would be invalid and without jurisdiction. When the proceedings are without jurisdiction, the writ Court can always entertain the writ petition by dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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