9911796707
TMI Blog2013 (7) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Tax Bangalore vs. Bill Forge Pvt. Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT] as also in the subsequent decision in the case of CCE, Bangalore vs. Pearl Insulation Ltd. [2012 (11) TMI 912 - KARNATAKA HIGH COURT] and it was held that said Supreme Court decision relate to taking of credit or utilizing the same wrongly and cannot apply to availment of Cenvat credit in the account books - Hon'ble Karnataka High Court, in ST Bangalore V/s Bill Forge Pvt. Ltd. held that the assessee had not taken or utilized the Credit but only availed wrong credit in their account books and on pointing out the mistake, immediately reversed the entry. As no benefit of wrong entry in account books was taken, interest is not payable – Decided against the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it seems that they availed the credit in respect of those items which according to the Revenue were not capital goods,. The said fact was pointed out by the audit and the appellant accepted the same and reversed the excess availed credit. 3. The dispute relates to as to whether such excess availed credit which was reversed by the assessee, even before utilization, would attract interest and penalty or not. Commissioner (Appeals) vide his impugned order has held that since the assessee reversed the credit before utilization, and the same remains only as a book entry, no interest would be leviable. However, he imposed penalties upon the assessee for availing inadmissible credit. The said order of Commissioner (Appeals) stand appealed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Ind-Swift Laboratories Ltd. was considered and it was held, that the interest would be payable from the date Cenvat credit is taken or utilized wrongly. By following the said decision of the Hon'ble Supreme Court, the Hon'ble Karnataka High Court, in an identical set of facts held that the assessee had not taken or utilized the Credit but only availed wrong credit in their account books and on pointing out the mistake, immediately reversed the entry. As no benefit of wrong entry in account books was taken, interest is not payable. The said order of the Karnataka High Court stand subsequently followed by them in the case of Commissioner of Central Excise, Bangalore V/s Pearl Insulation Ltd 2012 (281) E.L.T. 192 (Kar.). 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both sides, I find that is a case of allegedly wrong availment of credit in some of the capital goods. When the audit pointed out the fact to the assessee that they were not entitled to avail the credit, the appellant instead of entering into litigation, accepted the same and reversed the same immediately. Admittedly penal provisions are invokable, once there is a malafide on the part of the assessee. In the present case, the show cause notice does not attribute any malafide intention to the appellant so as to invoke the penal provisions of Section 11AC. The arguments of the learned DR is that since 11AC stand invoked that itself is sufficient to attribute malafide to the appellant, cannot be appreciated inasmuch as there has to be element ..... X X X X Extracts X X X X X X X X Extracts X X X X
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