2016 (12) TMI 197 - AT - Customs

CENVAT credit - the assessee filed an appeal before the Tribunal along with an application for COD in filing the appeal. The Tribunal dismissed the application for COD against which the appellants approached the Hon ble High Court. Meanwhile the appellants who had reversed the credit earlier had taken suo moto credit of the same amount. The present appeal relates to this credit availed by the appellant suo moto - Held that - In view of the finding that the appellant had availed credit before the finality of the demand raised as per the earlier show-cause notice, the claim of interest on behalf of the Department is legal and proper. In view thereof, the impugned order is modified only to the extent of setting aside the demand of interest - appeal allowed - decided partly in favor of Department.

Issues Involved:
Department's appeal against setting aside demand of interest and penalty.

Analysis:
The Department filed an appeal challenging the order passed by the Commissioner(Appeals) which set aside the demand of interest and penalty. The Department contended that the demand of interest was wrongly set aside by the Commissioner(Appeals) and the adjudicating authority. The respondent had availed credit on inputs, which the Department deemed ineligible as the items did not qualify as inputs. A show-cause notice was issued proposing to deny the credit, recover the amount along with interest, and impose a penalty. The demand, interest, and penalty were confirmed after adjudication, and the Commissioner(Appeals) upheld the decision. The respondent filed an appeal before the Tribunal along with an application for Condonation of Delay (COD), which was dismissed. The appellants approached the High Court against the dismissal. Meanwhile, the appellants reversed the credit but later took suo moto credit of the same amount. The appeal pertained to this credit availed by the appellant. The Tribunal found that the appellant had availed credit before the finality of the demand raised in the earlier show-cause notice, making the Department's claim of interest legal and proper. Consequently, the impugned order was modified to set aside the demand of interest, and the Department's appeal was allowed in this regard.

This judgment primarily dealt with the Department's appeal against the setting aside of the demand of interest and penalty by the Commissioner(Appeals). The Department contested that the demand of interest was wrongly set aside, arguing that the items for which the respondent availed credit did not qualify as inputs. A show-cause notice was issued, leading to the confirmation of the demand, interest, and penalty. The Commissioner(Appeals) upheld this decision. The appellant then approached the Tribunal with an application for COD, which was dismissed, prompting an appeal to the High Court. The appellant had initially reversed the credit but later took suo moto credit of the same amount. The Tribunal found that the appellant had availed credit before the finality of the demand raised in the earlier show-cause notice, justifying the Department's claim of interest. Consequently, the impugned order was modified to set aside the demand of interest, thereby allowing the Department's appeal.

In summary, the judgment revolved around the Department's challenge to the setting aside of the demand of interest and penalty by the Commissioner(Appeals). The Department argued that the demand of interest was incorrectly set aside, as the items for which the respondent availed credit were deemed ineligible as inputs. After a show-cause notice, the demand, interest, and penalty were confirmed, with the Commissioner(Appeals) upholding the decision. The appellant's subsequent actions regarding the credit led to the appeal before the Tribunal, with an application for COD being dismissed, necessitating an approach to the High Court. The Tribunal's finding that the appellant had availed credit before the finality of the earlier show-cause notice justified the Department's claim of interest. Consequently, the impugned order was modified to set aside the demand of interest, resulting in the Department's appeal being allowed.

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