TaxTMI 
TaxTMI 
2017 (3) TMI 1599
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....ee had defaulted and had not paid the excise duty within the stipulated period. It sought to utilise the Cenvat credit due to it towards payment of duty. Restrictions were imposed by Rule 8(3A) of the Central Excise Rules, 2002 in this regard. The adjudicating authority applied Rule 8(3A) and proceeded to impose penalty as well. The Commissioner on appeal in some of these cases merely reduced the penalty having regard to the mandatory nature of Rule 8(3A). In these circumstances, the assessee's appeal was sent back. 2. By the time the CESTAT took up these appeals, the Gujarat High Court had rendered a judgment in Indsur Global Ltd. v. UOI [2014 (310) E.L.T. 833 (Guj)]. The CESTAT noticed the said decision and granted relief, holding....
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....entral Excise Rules, 2002 on the main appellant i.e. M/s. Space Telelink Ltd. of Rs. 5,000/- (Rupees Five thousand only). Further, I hold that the Managing Director has not contravened, penalty on Managing Director are set aside." 3. Likewise, in other appeals as well, the claims of Cenvat credit was held to be admissible and the penalty imposed was set aside. 4. The revenue urges that this Court is not bound by the decision of the Gujarat High Court. The learned counsel argues that being a fiscal statute, whereby facility of payment of duty is spelt out by the provisions itself, imposition of conditions for availing benefit - as in the case of Cenvat credit, cannot be characterised being restrictive of the freedom of trade.....
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....n of India, 2016 (341) E.L.T. 603 (All.) 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) E.L.T. 3 (S.C.) as well as upon the decision in Collector v. Dai Ichi Karkaria Ltd. 1999 (112) E.L.T. 353 (S.C.) In Dai Ichi (supra), the Court held as follow :  "17. It is clear from these Rules, as we read them, that a manufacturer obtains credit for the excise duty paid on raw material to be used by him in the production of an excisable product immediately it makes the requisite declaration and obtains an acknowledgment thereof It is entitled to use the credit at any time thereafter when making payment of excise duty ....
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....use 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 quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of passing of the stay order and it does not mean that the said order has been wiped out from existence. This mean....