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TMI Blog2015 (1) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... t to debit that differential duty in the CENVAT account. Even in a clandestinely evasion cases also the CENVAT credit of inputs/ input services admissible, during the period of offence, is allowed to be abated from the total duty demanded even at the appeal stage. The interest payable is only calculated on the duty liability finally determined and not with respect to the duty demanded in the show cause notice. In this case appellant stands on a better footing as the CENVAT credit was available in the CENVAT account but could not be debited. It has to be thus held that interest is not payable with respect to duty required to be debited in the CENVAT Credit Account provided sufficient balance was available in the CENVAT Credit Account. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,216/- was paid belatedly on which interest of ₹ 5,77,943/- was payable by the appellant. After issue of show cause notice, Adjudicating authority confirmed interest demand of ₹ 5,77,943/- but did not impose any penalty as per provisions of Section 80 of the Finance Act, 1994. The present appeal has been filed by the appellant against this order of the Adjudicating authority. 3. Shri D.K. Trivedi (Advocate) appearing on behalf of the appellant argued that sufficient credit in the CENVAT credit was available with the appellant to take care of the duty required to be debited from CENVAT credit account. That appellant was under the bonafide belief that the duty part to be debited from CENVAT account was required to be made on q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was inadvertently not debited by the appellant on monthly basis when appellant was having sufficient balance in the CENVAT account. It is the case of the appellant that in the case of a clandestine removal and of non-payment of tax also admissible CENVAT credit during the relevant period of demand is given abatement from the total duty demanded and no interest is charged on the duty demand which is reduced on account of the admissible CENVAT credit during the relevant period of demand. It is observed from the case records that appellant had sufficient balance to debit that portion of duty demand which was due in the relevant month. No contrary evidence has been brought on record by the Revenue that appellant was not having sufficient b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds liability of the payment of ₹ 28,373/-, learned Chartered Accountant submitted that there was a circular issued by the Board stating that sub-contractor is not liable and only in September 2007, this instruction was reversed. However, these facts have not been brought before the lower authorities and have not been considered. Only submission was that the appellant is not liable in the capacity of sub-contractor. 5.1. In view of the above case law and also the settled proposition of law even in a clandestinely evasion cases also the CENVAT credit of inputs/ input services admissible, during the period of offence, is allowed to be abated from the total duty demanded even at the appeal stage. The interest payable is only calculate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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