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TMI Blog2007 (8) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... t contested the show cause notice on the ground that they had only raised the credit but had not utilized the same and there was enough balance in their Cenvat account. The adjudicating authority did not accept their contentions and confirmed the demand of the interest and also imposed penalty on the appellant. On an appeal the learned Commissioner (Appeals) also concurred with the views of the adjudicating authority and upheld the order. Hence appellant is in appeal against such order. 3. The learned advocate appearing for the appellant submits that the availment of excess credit was due to error of miscalculation and nothing else. It is his submission that the appellant had immediately reversed the credit on being pointed out. It is his submission that the appellant had during the relevant period had enough balance and have never utilized the excess credit. He produced the copies of the RG 23A Part II account for the period April 2003 to September 2004 (the date of issue of SCN). He submits the issue is covered in favour of the appellant by the decision of the Tribunal in the case of Maruti Udyog Limited - 2006 (196) E.L.T. 323, and Sagar Twisters (Final order No. A/374/WZB/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions contained in sub-section (2), or sub-section (2B), of section 11A till the date of payment of such duty : Provided that in such cases where the duty becomes payable consequent to issue of an order instruction or direction by the Board under section 37B, and such amount of duty payable is voluntarily paid in full, without reserving any right to appeal against such payment at any subsequent stage, within forty-five days from the date of issue of such order, instruction or direction, as the case may be no interest shall be payable and in other cases the interest shall be payable on the whole of the amount, including the amount already paid. (2) The provisions of sub-section (1) shall not apply to cases where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President. Explanation 1. - Where the duty determined to be payable is reduced by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, the interest shall be payable on such reduced amount of duty. Explanation 2. - Where the duty determined to be payable is increased or further increased by the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn for the use of the borrowed money. According to Stroud s Judicial Dictionary of Words and Phrases (5th Edn.) interest means, inter alia, compensation paid by the borrower to the lender for deprivation of the use of is money. In Secy., Irrigation, Deptt. Govt. of Orissa v. G.C. Roy the Constitution Bench opined that a person deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages.....this is the principle of Section 34 of the Civil Procedure Code. In Sham Lal Narula (Dr.) v. CIT this Court held that interest is paid for the deprivation of the use of the money. The essence of interest in the opinion of Lord Wright in Riches v. Westminster Bank Ltd. All ER at p. 472 is that it is a payment which becomes due because the creditor has not had his money at the due date. It may be regarded either as representing the profit he might have made if he had the use of the money, or, conversely, the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation; the money due to the creditor was not pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of duty necessarily has to relate to wrong utilization of credit, and not to wrong taking thereof. As such, by making the provisions of Section 11AB of the Act applicable to Rule 12 of the Cenvat Credit Rules, 2002, the said Rule clarifies, implicitly, that interest would payable only in the case of misutilisation of credit and not wrong taking thereof. 7. Moreover, interest is chargeable, under Section 11AB of the Central Excise Act, 1944, from the first date of the month succeeding the month in which the duty ought to have been paid, till the date of payment of such duty. The ending point for computation of interest is, therefore, the date of payment of duty. At the same time, the liability to interest could be said to exist, at all, only once there is determination, under Section 11A(2), that duty has been short paid - in the case of Cenvat, i.e., that Cenvat has been wrongly utilized. Once such determination take place, the interest. would, undoubtedly, start running from an earlier date, i.e., from the first of the month succeeding the month in which duty ought to have been paid. It is a question of some nicety, however, as to the ending point, till which the interest wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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