2012 (8) TMI 755 - HC - Service Tax

Demand of interest Held that - Though the credit of duty is entered in the account books unless the said credit is duly taken to discharge the duty payable the liability to pay interest for the delayed payment would not arise - In the case of wrong availment before the said duty is taken, if the entry is reversed it amounts to not taking the credit at all and therefore when admittedly no duty is payable, the question of payment of interest on the delayed payment of duty would not arise - in fovour of the assessee

Issues:
1. Whether the payment of interest by the assessee is justified.
2. Interpretation of Section 11AB of the Central Excise Act, 1944 regarding the payment of interest.
3. Applicability of previous tribunal and apex court judgments on the case.
4. Correctness of the Tribunal's decision in setting aside the order-in-Appeal and holding that the demand of interest is not justified.

Issue 1: Payment of Interest by the Assessee
The assessee, engaged in the manufacture of readymade garments, paid interest under protest after certain discrepancies were found during an audit. They claimed a refund of the interest amount, arguing that they voluntarily paid the duty liability before a show cause notice was issued. The assessing authority rejected the refund claim, stating that interest payment is required under Section 11AB of the Central Excise Act. The appellate authority upheld this decision. However, the Tribunal found that the assessee had reversed the wrongly availed credit without utilizing it to discharge any duty. Citing previous judgments, the Tribunal concluded that since the credit was reversed immediately after the audit revealed the lapse, the payment of interest was not justified. Consequently, the Tribunal set aside the previous orders and allowed the appeal.

Issue 2: Interpretation of Section 11AB
The Tribunal's decision was challenged on the grounds that it misinterpreted the law, particularly Section 11AB of the Central Excise Act. However, the High Court referred to a previous case where it was held that unless the credit is utilized to discharge duty payable, the liability to pay interest for delayed payment does not arise. The Court further clarified that if wrongly availed credit is reversed before any duty is paid, it is equivalent to not taking the credit at all. Therefore, in cases where no duty is payable, the question of interest on delayed payment does not arise. The Court found the Tribunal's decision in line with the law and ruled in favor of the assessee.

Issue 3: Applicability of Previous Judgments
The Tribunal based its decision on previous judgments, including one by the Apex Court, which held that once credit is reversed, it is as if the credit was not taken at all. The Court agreed with this interpretation, emphasizing that if credit is not utilized to discharge any duty, it has no impact on the government's revenue. Therefore, the Court upheld the Tribunal's decision to set aside the order requiring interest payment.

Issue 4: Correctness of Tribunal's Decision
In a related case, the Court had previously held that interest for delayed payment does not apply if the credit is not utilized to pay duty. Since the assessee in this case had reversed the credit without utilizing it, the Court found the Tribunal's decision to be correct and aligned with legal principles. Consequently, the Court answered the substantial questions of law in favor of the assessee and against the revenue, affirming the Tribunal's decision to allow the appeal and reject the demand for interest payment.

This detailed analysis of the judgment highlights the key issues, legal interpretations, and the rationale behind the High Court's decision in favor of the assessee regarding the payment of interest under the Central Excise Act.

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