2018 (2) TMI 921 – MADHYA PRADESH HIGH COURT – TMI – Maintainability of petition – grant of stay – Section 35-G (2) of the Central Excise Act, 1944 – Held that: – an order keeping in abeyance the judgment of a lower Court or authority does not deface the underlying basis of the judgment itself, i.e., its reasoning – appeal dismissed – decided against Revenue. – CEA No. 41 of 2017 Dated:- 6-2-2018 – P. K. Jaiswal And Virender Singh, JJ. Shri Prasanna Prasad, learned counsel for the appellant ORDER This appeal under Section 35-G (2) of the Central Excise Act, 1944 has been filed by the Revenue against order dated 11.01.2017 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi, by which the learned Appellate Tribunal allowed the appeal of the assessee filed against order dated 26.07.2012 passed in Order-in-Appeal by the Commissioner (Appeals), Customs & Central Excise, Indore, whereby the assessee was denied benefit of CENVAT credit on input and input servic
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r (Appeals)-I, Customs & Central Excise, Indore and dismissed the appeal filed by the Revenue. 2. Facts of the case are that respondent – M/s. Vikram Cement are engaged in the manufactures of Cement & Clinker falling under Sub-Heading No.25.23 of the schedule to the Central Excise Tariff Act, 1985 (5 of 1986). They are availing CENVAT Credit facility on inputs capital goods and input services under Rules 2 and 3 of the CENVAT Credit Rules, 2004. On the basis of departmental audit carried out in September, 2005, it was alleged that several input services for which CENVAT Credit has been allowed, would not be eligible for the same and show cause notice was issued. The Original Authority dismissed CENVAT Credit on various input services to the extent of ₹ 28,24,034/-. Vide order dated 30.03.2007 (Annexure-C) First Appellate Authority – Commissioner (Appeals), Customs & Central Excise, Indore allowed the CENVAT Credit to the tune of ₹ 27,57,759/- and upheld the dema
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ELT 256 (P&H) and (7) Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association reported in (1992) 3 SCC 1. The learned Appellate Tribunal has held that issue involved before the Tribunal is squarely covered by a decision of the Tribunal in the case of Cadile Health Care v. CCE, Ahmedabad reported in 2010 (17) STR 134 (Tribunal Ahmedabad) and held that denial of credit for these services is not legally sustainable and dismissed the appeal of the Revenue. 4. Shri Prasanna Prasad, learned counsel for the appellant has submitted that one appeal against order passed by the Delhi High Court on 08.03.2017 in the case of Commissioner of Central Excise Delhi-I etc. v. M/s. Space Telelink Limited & another has been filed before the Apex Court and the aforesaid matter is pending, and therefore, till the matter is decided, it cannot be said that the issue has been finally decided by the Courts of law. 5. It is not in dispute that the claims of CENVAT Credit was held to be admi
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India 2015 (326) ELT 256 (P&H) and ATV Projects Ltd. v. Union of India 2016 (341) ELT 603 (Allahabad). 6. On due consideration of the arguments of the learned counsel for the appellant – Department, so also the fact, which has not been disputed by the learned counsel for the Revenue, that the matter has been decided and appeal has been dismissed by the Delhi High Court in the case of Principal Commissioner of Central Excise, Delhi-I v. Space Telelink Limited reported in 2017 (355) ELT 189 (Delhi) by giving following reasons in paragraphs No.6, 7 and 8, which read, as under: – 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) ELT 3 (SC) as well as upon the decision in Collector v. Dai Ichi Karkaria Ltd. 1999 (112) ELT 353 (SC). In Dai Ichi (supra), the Court held as follows: – "17. It is clear from these Rules, as we read them, that a manufacturer obtains credit for
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t that is manufactured out of the particular raw material to which the credit is related. The credit may be taken against the excise duty on a final product manufactured on the very day that it becomes available. 18. It is, therefore, that in the case of Eicher Motors Ltd. v. Union of India [1999(106) ELT 3] this Court said that a credit under the MODVAT scheme was as good as tax paid." 7. The revenue has argued that the Supreme Court has entertained a Special Leave Petition against the judgment of 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 qu
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continues to exist in law so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the Appellate Authority." 8. It is apparent therefore, that an order keeping in abeyance the judgment of a lower Court or authority does not deface the underlying basis of the judgment itself, i.e., its reasoning. 7. In view of the aforesaid, we are of the view that the law on the issue is well settled by various High Courts. No case to interfere with order dated 02.06.2016
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