9911796707
TMI Blog2017 (7) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... of existence of ingredients such as fraud, suppression etc. Invoking of the extended period would, therefore, not be consistent with the findings of the first appellate authority that the wrong availment is nothing but a mistake on the part of the assessee. In these circumstances, the invoking of provisions in section 11A of Central Excise Act, 1944 is not tenable. It is clear from the record that the appellant had reversed the wrongly availed credit immediately upon it being pointed out. Hence, there was no further scope for initiating recovery proceedings in relation to this credit. The charging of interest in the impugned order is not valid and must be set aside - appeal allowed - decided in favor of appellant. - E/177 & 118/2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above rule, and reiterated in circular no. 897/17/2009-CX dated 3rd September 2009 of Central Board of Excise Customs, has been cited as a ground for not being required to follows the decision of the Hon'ble Supreme Court in re Maruti Udyog Ltd. The further reiteration of this view in circular no. 942/03/2011/CX dated 14th March 2011 of Central Board of Excise Customs was also relied upon by the first appellate authority to uphold the demand of interest. 4. At the same time, the appellate authority has noted that the assessee has a huge balance in the CENVAT account and, not being in a position to utilise it, there was no motive to avail credit by resorting to fraudulent means with this, at worst, being nothing but a clerical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of mechanism to recover erroneously taken/utilised credit. It is clear from the record that the appellant had reversed the wrongly availed credit immediately upon it being pointed out. Hence, there was no further scope for initiating recovery proceedings in relation to this credit. It would appear that the superfluous exercise was initiated merely to link the recovery of interest and to provide the legal wherewithal to do so. 7. In view of the finding supra that proceedings under section 11A of Central Excise Act, 1944 do not sustain, recovery of interest too will fail the test the legality. It is also worth noting that the Hon'ble High Court of Karnataka has, in Commissioner of Central Excise Service Tax, Bangalore V. Bill Forg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the entry was reversed, it is as if that the Cenvat credit was not available. Therefore, the said judgment of the Apex Court has no application to the facts of this case. It is only when the assessee had taken the credit, in other words by taking such credit, if he had not paid the duty which is legally due to the Government, the Government would have sustained loss to that extent. Then the liability to pay interest from the date the amount became due arises under Section 11AB, in order to compensate the Government which was deprived of the duty on the date it became due. Without the liability to pay duty, the liability to pay interest would not arise. The liability to pay interest would arise only when the duty is not paid on the due d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
