M\/s. TVS Srichakra Limited Versus The Commissioner of CGST & Central Excise,
Central Excise
2018 (4) TMI 1046 – MADRAS HIGH COURT – 2018 (15) G. S. T. L. 182 (Mad.)
MADRAS HIGH COURT – HC
Dated:- 23-2-2018
W.P(MD)No.2131 of 2018 and WMP(MD)No.2375 of 2018
Central Excise
G. R. Swaminathan, J.
\nFor the Petitioner : Mr.N.Venkatraman, Senior Counsel for S.P.Maharajan
\nFor the Respondent : Mr.R.Aravindan
\nORDER
\nThe petitioner is a company engaged in the manufacture of various types of tyres and tubes falling under Chapter 40 of the Central Excise Act, 1944. They are availing credit of duty paid on inputs, capital goods and service tax paid on input services. The petitioner sold capital goods in the form of plant and machinery to M\/s.OPC Asset Solutions Private Limited on 22.03.2013. The said capital goods were leased back to the petitioner with effect from 01.04.2013. According the petitioner, the goods were sold to OPC Limited only for financial accommodation and in <\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n the petitioner herein submitted their written submissions dated 16.02.2017. A copy of the written submissions as well as the list of authorities relied upon by the petitioner during personal hearing are enclosed in the typed set of papers. Thereafter, the impugned order dated 31.10.2017 came to be passed confirming the proposals made in the show cause notice. Questioning the same, this writ petition has been filed. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n the deemed removal of the capital goods from the factory premises of the petitioner as per the sale invoice dated 22.03.2013 and the leasing back only with effect from 01.04.2013, the petitioner is liable to reverse the cenvat credit availed by them. The petitioner in response pointed out that the capital goods were never removed from the factory premises. In this regard, great reliance was placed down on the decision of the Hon'ble Division Bench of this Court reported in 2015 (323) E.L.T 290 (Mad) (Commissioner of C.EX., Tiruchirappalli V. CESTAT, Chennai) = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n respect of inputs on capital goods shall be paid. This situation has not arisen in the present case, as no invoice has been issued for removal of the goods from the factory premises and, therefore, the said rule is not applicable to the case of the assessee. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ndia Commercial Co. Ltd., Calcutta V. Collector of Customs, Calcutta). The Hon'ble Supreme Court 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. If the proceedings are without jurisdiction, the question of applying the rule with regard to the exhaustion of alternative remedy can be dispensed with. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. TVS Srichakra Limited Versus The Commissioner of CGST & Central Excise,Central Excise2018 (4) TMI 1046 – MADRAS HIGH COURT – 2018 (15) G. S. T. L. 182 (Mad.)MADRAS HIGH COURT – HCDated:- 23-2-2018W.P(MD)No.2131 of 2018 and WMP(MD)No.2375 of 2018 Central ExciseG. R. Swaminathan, J. For the Petitioner : Mr.N.Venkatraman, Senior Counsel for S.P.Maharajan For … Continue reading “M\/s. TVS Srichakra Limited Versus The Commissioner of CGST & Central Excise,”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-11501","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/11501","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=11501"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/11501\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=11501"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=11501"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=11501"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n4.Heard Shri.N.Venkatraman, learned Senior Counsel who presented his case with his customary lucidity and emphasis and the learned standing counsel appearing for the respondent.
\n5.The submissions of the learned senior counsel appearing for the petitioner can be summarized in the form of three propositions.
\n 1.Though the remedy of statutory appeal is available to the petitioner, in the facts and circumstances of this case, the petitioner ought not to be non suited on that ground.
\n 2.The impugned order is vitiated for failure to advert to the defence projected by the peti<\/p>\n
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\n9.In the said case, questions of law similar to the one raised in this writ petition were projected for consideration of the Hon'ble Division Bench. The Hon'ble Division Bench after referring to Rule 3(5) of the Cenvat Credit Rules, 2004 and the decision of the Allahabad High Court in (Hero Motors Ltd. v. Commissioner of Central Excise, Ghaziabad (2014 (310) E.L.T 729), held as follows :
\n “16.On a plain reading of Rul<\/p>\n
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\n 18.The above is the view succinctly expressed by the Allahabad High Court in Hero Motors case (supra). This Court is in agreement with the view expressed by the Allahabad High Court in the above-cited decision and the above decision is squarely applicable to the facts of the present case. In view of the above, the interpretation with regard to Rule 3 (5) of CCR, 2004, as made by the Tribunal in the present case is fully justified and it calls for no interference at the hands of this Court.”
\n10.In the affidavit filed in support of the writ petition, it had been specifically pleaded that the aforesaid decision of the Division Bench of this Court was referred to not only in the written submissions but also reiterated at the time <\/p>\n
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\n13.This Court is of the view that the petitioner has made out a convincing case for bye-passing the statutory alternative remedy available to it and for directly invoking the jurisdiction of this Court. There is one other aspect of the matter. The stand of the writ petitioner is that the revenue has not questioned the legality of the sale dated 22.03.2013 and the rental agreement. In the cou<\/p>\n
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