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2019 (2) TMI 666 - AT - Central ExciseLiability of Interest and penalty - irregularly availed CENVAT credit but not utilized - Held that - Reliance placed in the judgment of the Hon ble Karnataka High Court in the case of Bill Forge Ltd. 2011 (4) TMI 969 - KARNATAKA HIGH COURT wherein the Hon ble High Court has held that assessee is not liable to pay interest if the assessee has reversed CENVAT credit before utilization of the same - Further the issue of the appellant is covered by the Larger Bench decision of the Tribunal in the case of J.K. Tyre & Industries Ltd. Vs. AC of Central Excise, Mysore 2016 (11) TMI 911 - CESTAT BANGALORE . The impugned order demanding penalty and interest is not sustainable in law - appeal allowed - decided in favor of appellant.
Issues:
Appeal against rejection of CENVAT credit - Alleged irregular CENVAT credit availed - Recovery through show-cause notice - Order-in-Original confirming demand - Interest and penalties imposed - Appeal before Commissioner(Appeals) - Rejection of appeal - Sustainability of impugned order - Consideration of facts and evidences - Reversal of CENVAT credit before utilization - Liability to pay interest and penalties - Applicability of legal precedents - Karnataka High Court judgment in Bill Forge Ltd. case - Larger Bench decision of Tribunal in J.K. Tyre & Industries Ltd. case - Decision in favor of the appellant. Analysis: The case involved an appeal challenging the rejection of CENVAT credit availed by the appellant for the period April 2002 to January 2014. The appellant, engaged in the manufacture of excisable goods, was alleged to have irregularly availed CENVAT credit amounting to ?1,70,060, leading to the issuance of a show-cause notice for recovery. The Order-in-Original confirmed the demand, along with interest and penalties, under Rule 14 of CCR read with Section 11A of the Central Excise Act. Subsequently, the appellant appealed to the Commissioner(Appeals), who upheld the decision, prompting the present appeal. During the hearing, the appellant's counsel argued that the impugned order lacked legal sustainability as it did not adequately consider the facts and evidences. It was highlighted that the appellant had promptly reversed the CENVAT credit upon identification during an audit, well before any utilization, and had sufficient balance during the relevant period. The counsel contended that the appellant should not be held liable for interest and penalties. Legal precedents, including decisions such as CCE Vs. Vimlax Industrial Fabrics and Tata Business Support Services Ltd. Vs. CCE, were cited in support of this argument. Furthermore, reference was made to the judgment of the Hon'ble Karnataka High Court in the case of Bill Forge Ltd., which established that no interest is payable if CENVAT credit is reversed before utilization. The appellant also relied on the Tribunal's Larger Bench decision in J.K. Tyre & Industries Ltd. case to support their position. Ultimately, the judicial member, aligning with the principles established in the cited decisions, concluded that the impugned order demanding penalties and interest was unsustainable in law. Consequently, the appeal of the appellant was allowed, setting aside the penalties and interest imposed. In the operative part of the order pronounced on 03/01/2019, the judicial member declared the decision in favor of the appellant, emphasizing the importance of timely reversal of CENVAT credit before its utilization to avoid liability for interest and penalties.
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