2018 (2) TMI 797 - AT - Central Excise

Rectification of mistake - the order dated 24/08/2017 records that no evidence has been given in support of the assertion that the appellant had not utilised the credit - Held that - the liability of interest cannot be set aside, even if the appellants have not utilised the credit. It is seen that the show-cause notice does not specifically say that the appellants have mis-declared the price or committed fraud, etc. The appellant had taken 14 times and the consumption cannot be a clerical mistake which is apparent from the number of appellants have taken credit wrongly - ROM application dismissed.

Summary

Issues: Liability of interest on wrongly availed credit, applicability of Rule 15 (2) of Cenvat Credit Rules, 2004, interpretation of judicial precedents

In this case, the applicant filed a ROM application against an order imposing penalty under Section 15 (2) of the Cenvat Credit Rules, 2004, for wrongly availed credit. The applicant argued that evidence showing non-utilization of credit was submitted promptly after the hearing, and no allegations of mis-declaration or fraud were made in the notice. The AR, however, contended that interest is payable even if credit is not utilized, citing judicial precedents. The Tribunal analyzed the submissions, noting the distinction made by the High Court in a previous case and the applicability of Rule 15 (2). The Tribunal observed that even without specific allegations of mis-declaration, the evidence of inadmissible credit taken by the applicant justified the penalty. The Tribunal dismissed the ROM application, emphasizing the repeated instances of wrongly availed credit as clear evidence against the applicant, leading to the conclusion that the penalty was justified. The Tribunal's decision was pronounced on 28/12/2017.