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2018 (9) TMI 200 - HC - Central ExciseCENVAT Credit alongwith Education Cess - Section 11A(1) of the Central Excise Act, 1944 - Capital Goods - it was pointed out that depreciation of capital goods availed under Section 32 of the Income Tax Act, 1961 cannot be availed as Cenvat credit and therefore, the said amount should be reversed - Rule 14 of the CCR, 2004 - extended period of limitation. Held that - Firstly, the Revenue did not dispute the fact that the assessee is an S.S.I. and has not availed the Cenvat credit and the credit remains as an entry in the books. Therefore, on facts, it will be a very hard case for the Court to reverse the decision of the Tribunal, especially when the Revenue does not dispute the factual position. Amendment to Rule 14 of the CCR, 2004 - Held that - The amendment can have no impact on the present proceedings, as admittedly, the period in question is between July, 2008 to March, 2009. In any event, the amendment cannot be treated to have retrospective effect and an amendment to a statute, which has been given prospective effect, cannot be used as an aid to interpret the statutory provision, which existed prior to the amendment, unless and until it is held to be clarificatory - No such argument was advanced to state that the amendment to Rule 14 of the CCR, 2004 was clarificatory in nature. Appeal dismissed - decided against Revenue.
Issues Involved:
1. Waiver of demand of interest under Rule 14 of the Cenvat Credit Rules, 2004. 2. Waiver of penalty under Rule 15(2) of the Cenvat Credit Rules, 2004 and Section 11AC of the Central Excise Act, 1944. Detailed Analysis: 1. Waiver of demand of interest under Rule 14 of the Cenvat Credit Rules, 2004: The primary issue revolves around whether the Tribunal erred in waiving the demand of interest under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11AB of the Central Excise Act. The Tribunal's decision was influenced by the fact that the Cenvat credit remained unutilized and was merely a book entry. The Tribunal referenced the Supreme Court's decision in the case of Commissioner of Central Excise, Mumbai-I vs. Bombay Dyeing & Manufacturing Co. Ltd., which held that reversal of credit before utilization amounts to not taking credit. The Revenue, however, argued that the legal position was settled by the Supreme Court in Union of India vs. Ind-Swift Laboratories Ltd., which interpreted the word "or" in Rule 14 to mean that interest is recoverable on credit taken or utilized wrongly, or erroneously refunded. The High Court agreed with the Revenue, stating that the Tribunal misapplied the Bombay Dyeing case, which arose from an exemption notification and was not applicable to the current facts. The High Court emphasized that Rule 14 should not be read down to substitute "or" with "and," as confirmed by the Supreme Court in Ind-Swift Laboratories Ltd. The amendment to Rule 14, which substituted "or" with "and," was held to be prospective and not clarificatory. 2. Waiver of penalty under Rule 15(2) of the Cenvat Credit Rules, 2004 and Section 11AC of the Central Excise Act, 1944: The second issue concerned the Tribunal's decision to reduce the penalty from ?8,08,730/- to ?1,00,000/-. The Revenue contended that the Tribunal erred by not imposing the mandatory penalty equal to the duty amount as required under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. The Supreme Court in Union of India vs. Rajasthan Spinning & Weaving Mills clarified that when conditions under Section 11AC are fulfilled, there is no discretion to reduce the penalty. However, the High Court refrained from addressing this issue in depth, noting that it largely revolved around factual aspects and the Tribunal's findings on the assessee's conduct. The High Court did not consider this a substantial question of law and chose to leave the issue open. Conclusion: The High Court concluded that the Tribunal's decision to waive the interest demand was incorrect, aligning with the Supreme Court's interpretation in Ind-Swift Laboratories Ltd. The amendment to Rule 14 was not retrospective and could not be used to interpret the rule as it stood before the amendment. The High Court thus answered the first substantial question of law in favor of the Revenue. However, the appeal was dismissed, and the Tribunal's order was confirmed for the reasons stated therein, while the second question of law was not addressed in detail.
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