2016 (3) TMI 709 - AT - Central Excise

Recovery of interest on the cenvat credit wrongly taken - Held that - Where the cenvat credit is taken or utilized or erroneously refunded, the same along with interest should be recovered from the manufacturer or the provider of output service and the provisions of Section 11A and 11AB shall apply mutatis mutandis for effecting such recoveries. The recovery of interest is under Rule 14. Only the mode of recovery is as provided for under Section 11AB of the Central Excise Act. The Hon ble Supreme Court in the case of Ind-Swift Laboratories Ltd. (2011 (2) TMI 6 - Supreme Court ) examined the question whether interest would be liable to be paid even when the cenvat credit has been taken wrongly but not utilized and noted that since the Rule covers both the situations i.e. cenvat credit taken or utilized wrongly and the word or is disjunctive in nature, even if the credit has been availed wrongly, the liability pay interest would accrue. Therefore hold that the appellant is liable to discharge interest liability paid subsequently under protest to the respondent. - Decided against assessee.

Summary

Issues:
Recovery of interest on wrongly availed cenvat credit under Rule 14 of Cenvat Credit Rules, 2004.

Analysis:
The appeal was against an order-in-original passed by the Commissioner of Central Excise regarding the appellant's inadvertent double availing of cenvat credit on the same set of documents. The appellant voluntarily reversed the credit upon detection and informed the authorities. The department issued a show cause notice for recovery of the wrongly availed service tax credit, interest, and penalty. The appellant contended that they had not utilized the wrongly availed credit, thus should not be liable to pay interest. The appellant cited various decisions supporting their argument. The Revenue argued that interest liability arises even if credit is taken but not utilized, as per the Supreme Court's decision in Ind-Swift Laboratories Ltd. case. The Tribunal examined Rule 14 of Cenvat Credit Rules, which mandates recovery of wrongly taken credit along with interest. The Tribunal referred to the Supreme Court's interpretation and the Bombay High Court's observation that interest liability accrues even if credit is taken but not utilized. The Tribunal upheld the interest liability of the appellant, citing the Bombay High Court's judgment, and dismissed the appeal, stating the appellant was not entitled to a refund of the interest already paid.

This judgment clarifies the liability of a manufacturer or service provider to pay interest on wrongly availed cenvat credit, even if the credit was not utilized. The Tribunal emphasized the disjunctive nature of the Rule, stating that interest accrues upon wrongful availing of credit, irrespective of its utilization. The decision highlights the importance of strict interpretation of rules and precedent set by higher courts in determining interest liability on wrongly taken cenvat credit. The judgment serves as a precedent for future cases involving recovery of cenvat credit and interest under Rule 14 of the Cenvat Credit Rules, 2004.