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TMI Blog2016 (2) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... credit taken on the excess payment of service tax was in the strict category of “wrongly taken or utilized CENVAT credit” and more so in the light of decision of the Hon’ble Karnataka High Court’s decision in the case of CCE vs. Bill Forge [2011 (4) TMI 969 - KARNATAKA HIGH COURT] - provisions of Rule 14 of CENVAT Credit Rules, 2004 for recovery of interest on the subject CENVAT credit amount will not be attracted. - demand set aside - Decided in favor of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... -TNT/308/2009 GLT-1 asking the appellant to furnish Cenvat statement showing the availment of credit. 3 21.10.2009 Letter of the appellant furnishing the details of the Cenvat along with the refund claim application. 4 10.11.2009 Letter of the department vide C. No.V/18/ST/308/2009 GLT.1 asking the appellant to reverse Cenvat credit for consideration of the refund claim. 5 13.11.2009 Letter of the appellant informing the department regarding reversal of Cenvat. 6 15.01.2010 Order-in-Original No.11/R/2010/LTU passed by the Assistant Commissioner-LTU sanctioning the refund. 7 05.10.2010 Show-cause notice was issued proposing for recovery of interest and imposition of penalty. 3.1 The learned advocate argues that provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned AR in support cites the Hon'ble Supreme Court's judgment in the case of UOI vs. Ind-Swift Laboratories Ltd.: 2011 (265) E.L.T. 3 (S.C.). 5. There is no dispute about the facts on record. The appellant-assessee accepts that they have taken the CENVAT credit but they say that it was not wrong; however, the Revenue says that as per law this was a "wrong CENVAT credit taken" by the appellant-assessee attracting the provisions of Rule 14 of CENVAT Credit Rule, 2004. 5.1 The appellant argues that they took the CENVAT credit no doubt but he vehemently argues that it was 'not wrong availment'. The Revenue of course says that it was wrong CENVAT credit, stating that it is wrong as it was not due to the assessee, when the service tax for whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occasion the appellant-assessee utilized the same as throughout the relevant period, the appellant-assessee had the balance amount in their CENVAT Account more than the CENVAT credit amount in question. Considering the facts of the case quoted by the Revenue, I am of the considered view that strictly speaking this decision of the Hon'ble Supreme Court is not applicable to the present facts. Further, the appellant who makes the mention of the amended Rule 14 of CENVAT Credit Rules (amended in the year 2012) stating that the wordings 'CENVAT credit taken or utilized' have now been substituted with the words - 'wrongly taken and utilized', cannot have any direct effect on the present case as the period involved is prior to the said amendment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puts. (emphasis supplied) 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 (emphasis supplied). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. Thereafter department issued show-cause notice dated 5.10.2010 starting the proceedings for recovery of interest invoking Rule 14 of CENVAT Credit Rules, 2004 and present appeal is in consequence to the Order-in-Original passed by the Commissioner against the said show-cause notice. 5.6.1 All the above facts, strictly speaking do not clearly prove that the CENVAT credit taken on the excess payment of service tax was in the strict category of "wrongly taken or utilized CENVAT credit" and more so in the light of decision of the Hon'ble Karnataka High Court's decision in the case of CCE vs. Bill Forge (supra) and by following the decisions of Hon'ble High Courts of Karnataka and Madras given below: (i) CCE vs. Pearl Insulation L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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