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TMI Blog2014 (7) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... attracted only on delayed payment of duty i.e., where only duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, the person liable to pay duty, shall in addition to the duty is liable to pay interest. Section do not stipulate interest is payable from the date of book entry, showing entitlement of Cenvat credit. Interest cannot be claimed from the date of wrong availment of CENVAT credit and that the interest would be payable from the date CENVAT credit is taken or utilized wrongly - Following decision of Commissioner of Central Excise & ST, LTU Bangalore Vs. Bill Forge Pvt. Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT] and U.O.I. Vs. Indo Swift Laboratories [2011 (2) TMI 6 - Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 14,68,800/- (including Education Cess) taken in respect of dumpers under Rule 14 of Cenvat Credit Rules 2004. (iii) Confirmed demand of ₹ 2328/- towards Service Tax credit taken respect of telephone service as telephones were not registered in the name of the Appellants. (iv) Imposed penalty of ₹ 92,88,184/- under Section 78 ibid read with Rule 15 of Cenvat Credit Rules 2004 and Section 11AC of the Central Excise Act, 1944. It may be pertinent to mention here that the Appellants' appeal is only in respect of points (i) and (ii) above and (by implication) the consequential penalty relating thereto. 2. The main contentions of the assessee made in their written submissions and during personal hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is distinguishable as has been done in the case of Balmer Lawrie Co. Ltd. Vs. Commissioner of Central Excise 2014 (301) ELT 573 (Tri-Mum.) and that the said judgement has also been held per incurium by CESTAT in the case of M/s. Dr. Reddy's Laboratories Ltd. Vs. Commissioner of Central Excise, Hyderabad. 4. We have considered the submissions made by both the parties. 5. As regards the demand of Service Tax on the value of the free supplies of diesel is concerned, the Larger Bench of this Tribunal in the case of M/s. Bhayana Builders Pvt. Ltd. Vs. Commissioner Service Tax, Delhi 2013 (32) STR 49 (Tri-LB) has held that the value of free supplies is not includible in the gross consideration received by the Service provider for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee, who has withheld payment of any tax, as and when it is due and payable. The levy of interest is on the actual amount which is withheld and the extent of delay in paying tax on the due date. If there is no liability to pay tax there is no liability to pay interest. Section 11AB of the Act is attracted only on delayed payment of duty i.e., where only duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, the person liable to pay duty, shall in addition to the duty is liable to pay interest. Section do not stipulate interest is payable from the date of book entry, showing entitlement of Cenvat credit. Interest cannot be claimed from the date of wrong availment of Cenvat credit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the facts are different. The Hon'ble CESTAT is para 5.2 inter-alia states as under: The reliance placed by the appellant on the decision of the Hon'ble Karnataka High Court in the case of Bill Forge Pvt. Ltd. (supra) and the other decisions will not apply to the facts of the present case. In the case of Bill Forge Pvt. Ltd. (supra) appellant therein took the credit and also reversed the credit within the same month i.e. before any liability to pay any duty arose. Thus what is contended is that the Karnataka High Court judgement (supra) would be applicable only when the credit is reversed within the same months i.e. before any liability to pay duty arose. It is difficult to accept that this distinction in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in para 21 as under:- 21. Interest is compensatory in character, and is imposed on an assessee, who has withheld payment of any tax, as and when it is due and payable. The levy of interest is on the actual amount which is withheld and the extent of delay in paying tax on the due date. If there is no liability to pay tax, there is no liability to pay interest. Section 11AB of the Act is attracted only on delayed payment of duty i.e., where only duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, the person liable to pay duty, shall in addition to the duty is liable to pay interest. Section do not stipulate interest is payable from the date of book entry, showing entitlement of C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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