2011 (1) TMI 837 - AT - Central Excise

Cenvat Credit - inputs used in production of exempted as well as dutiable product - Appellant has reversed the entire amount attributable to the credit taken which were utilized in exempted products. He also brings to our notice that the fact that the appellant has not utilized the amount which were sought to be reversed by the Department. He specifically takes us through the findings of Adjudicating Authority which has been upheld by the ld. Commissioner(Appeals). He would also brings to our notice the judgment of the Hon ble High Court of Ind-Swift Laboratories Ltd. Vs. UOI 2009 -TMI - 34688 - PUNJAB & HARYANA HIGH COURT - Decided in favour of assessee.

Summary

Issues:
Demand of interest on availed Cenvat Credit, applicability of Board's circular 3/9/2009, interpretation of Rules regarding payment of interest, relevance of the judgment of the Hon'ble High Court of Ind-Swift Laboratories Ltd.

Analysis:
The appellant filed a stay petition seeking waiver of pre-deposit of interest and penalty amounts. Upon hearing both sides, the Tribunal observed that the appeal could be disposed of promptly due to the narrow compass of the issue. The demand for interest arose from the appellant availing Cenvat Credit on inputs used in both exempted and dutiable products. The appellant had reversed the credit amount utilized in exempted products, which was not utilized before reversal. The Tribunal noted the findings of the Adjudicating Authority and the judgment in Ind-Swift Laboratories Ltd. vs. UOI [2009(240) ELT 328 (P&H)] cited by the appellant's counsel.

The Revenue argued that interest liability arises when Cenvat Credit is wrongly taken but reversed before utilization, citing Board's circular 3/9/2009. However, the Tribunal referred to the judgment of the Hon'ble High Court of P&H in the case of Indi-Swift Laboratories Ltd., which interpreted the Rules differently. The High Court held that interest should only be payable when Cenvat credit is wrongly utilized, not merely taken. The Tribunal, following this precedent, set aside the impugned order and allowed the appeal in favor of the assessee, disposing of the stay petition as well.

In conclusion, the Tribunal's decision was based on the settled law as per the judgment of the Hon'ble High Court of P&H, which clarified that interest on Cenvat Credit should be payable only when wrongly utilized, not just taken. This ruling favored the appellant, leading to the appeal being allowed and the stay petition being disposed of accordingly.