9911796707
TMI Blog2015 (12) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... ft Laboratories case and M/s.Bill Forge (P) Ltd. case [2011 (4) TMI 969 - KARNATAKA HIGH COURT], but has also gone one step further by considering the subsequent amendment brought forth in Rule 14 of Central Excise Rules, 2004. This Tribunal in the case of Gurmehar Construction Vs. CCE, Raipur [2014 (7) TMI 849 - CESTAT NEW DELHI] followed the judgement in M/s.Bill Forge (P) Ltd. case. In this background of judicial dispositions on the issue, I am inclined to follow the judgement laid by Hon'ble High Court of Karnataka in the case of M/s.Bill Forge (P) Ltd. which has been endorsed by the Hon'ble High Court of Madras in Strategic Engineering (P) Ltd. case. - interest is not chargeable on the credit wrongly taken which was reversed before uti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was never utilized by them for payment of duty. That therefore no interest was payable. The department did not accept this view and issued a show cause notice dated 13.11.2009 proposing the demand of interest of ₹ 22,843/- and imposition of penalty. The adjudication culminated in the Order-in-Original which confirmed the demand of interest and imposed equal amount of penalty. In appeal, the Commissioner (Appeals) vide impugned order upheld the same. Being aggrieved the appellant is before the Tribunal. 3. The learned counsel for appellant submitted that the credit taken was reversed very soon on coming to know of the mistake. As the credit taken was reversed before utilization, no interest is payable. He placed reliance on the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be worthwhile to notice Rule 14 of Cenvat Credit Rules, 2004, as it stood during the relevant period: Rule 14. Recovery of CENVAT credit wrongly taken or erroneously refunded.-Where the CENVAT credit has been taken or utilized wrongly or has been erroneously refunded, the same along with interest shall be recovered from the manufacturer or the provider of the output service and the provisions of sections 11A and 11AB of the Excise Act or sections 73 and 75 of the Finance Act, shall apply mutatis mutandis for effecting such recoveries. 7. The issue that poses for consideration is whether interest is chargeable on the cenvat credit wrongly taken, though the same is reversed before utilization of the credit. The Hon'ble Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that the interest would be payable from the date CENVAT credit is taken or utilized wrongly. 22................. In other words, once the entry was reversed, it is as if that the Cenvat credit wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompel the assessee to pay interest as well as penalty. Further, as pointed out earlier, the subsequent amendment has given befitting answer to all doubts existed earlier. Since, the subsequent amendment has cleared all doubts existed earlier in respect of Rule 14 of the said Rules, it is needless to say that the argument advanced by the learned counsel appearing for the appellant/Department is erroneous, whereas the argument advanced on the side of the respondent is really having merit and the substantial questions of law settled in the present Civil Miscellaneous Appeal are not having substance and altogether the present Civil Miscellaneous Appeal deserves to be dismissed. 9. Prior to the above amendment, the word 'or' used twi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Revenue is the judgement of the Hon'ble High Court of Bombay in CCE vs. GL V India Pvt.Ltd., dated 27.4.2015 . But this is a case where the assessee had taken suo motto credit and reversed the same before utilization of the credit. The Hon'ble High Court therein followed the dictum laid in UOI vs. Ind Swift Laboratories Ltd. case and the case of M/s.Bill Forge (P) Ltd was distinguished on facts. The Hon'ble High Court was not persuaded by the decision of the Hon'ble Madras High Court in CCE, Madurai Vs. Strategic Engineering (P) Ltd. 12. From the above discussion, it is seen that there are judgements of various High Courts which have taken different views referring to the Hon'ble Apex Court judgement in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
