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TMI Blog2017 (5) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... is position cannot be called in for any deliberations. Since during the relevant time the appellant had paid differential duty on being convinced by the Revenue, he definitely can take a plea for non-discharge of interest and non-imposition of penalty before the judicial forum. It is the settled law that in the first place if the duty liability does not arise, the question of payment of interest and imposition of penalty will not arise. Appeal allowed - decided in favor of appellant. - E/3103/06-Mum - A/86682/17/EB - Dated:- 16-3-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri Manoj Chouhan, C.A., for appellant Shri N.N. Prabhudesai, Superintendent (AR), for respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sister concern, need not be reassessed and the assessable value on the invoices, under which the inputs were received, has to be considered and reversal of cenvat credit is sufficient. It is his submission that once they have reversed the cenvat credit, as settled law, question of interest and imposition of penalty does not arise. He submits that since the differential duty paid by the appellant is availed as cenvat credit by the sister concern, there is plea of revenue neutrality and hence there is no question of any interest payment as held by the Hon ble High Court of Gujarat in the case of CCE, Vadodara-II vs. Indeos ABS Ltd. - 2010 (254) ELT 628 (Guj.). 5. Learned departmental representative, on the other hand, submits that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of the submissions made by both sides, we find that the issue is in respect of the interest liability and the penalty imposed on the appellant for the differential duty demanded and paid by the appellant. 7. Undisputedly, during the relevant period in question, the appellant had cleared inputs on which cenvat credit was availed to their sister concern by reversing the actual cenvat credit availed on the quantity of the inputs cleared. Revenue authorities during the period were of the view that central excise duty needs to be discharged after arriving at the assessable value as per Section 4 of the Central Excise Act on the inputs, considering them as if manufactured by the appellant. This view of the Revenue has been negate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CCE, Indore - 2014 (301) 358 (Tri.-Del.). Though the doctrine of election and approbating and reprobating would debar any appellant from contesting penal liability, the issue involved in this case is an issue which was contested by the trade and was held in favour of the assessee by the Tribunal in the case of Ispat Metallics Industries Ltd. vs. CCE, Raigad - 2006 (194) ELT 417. Therefore, if an assessee even elects to discharge the differential duty and subsequently contests the interest liability and penalty sought to be imposed by a show cause notice issued after three years of the discharge of the duty liability, the doctrine of election will not apply is our view. 11. In view of the foregoing, we hold that the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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