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TMI Blog2018 (2) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... le to bring on record any material which shows that there was suppression of fact or fraud or collusion or willful misstatement with intent to evade payment of tax - also, the wrongly availed credit was reversed before the issue of show cause notice, therefore there is no intent to evade - extended period and penalty not invocable. Appeal allowed in part. - ST/86912/14-Mum - A/85126/2018 - Dated:- 31-1-2018 - Mr. S. S. Garg, Member ( Judicial ) And Mr. C.J. Mathew, Member ( Technical ) Shri Ankur Upadhyaya, Advocate, for appellant Shri S.R. Nair, E.O. ( AR ), for respondent ORDER Per : S. S. Garg The present appeal is directed against the impugned order dated 25.2.2014 passed by the Commissioner, whereby the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to pay interest and penalty. Hence the present appeal. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the binding judicial precedent. He further submitted that the appellant is not liable to pay interest as the appellant had only taken cenvat credit in their books of accounts but had not utilized the same for payment of service tax as can be seen from ST-3 returns. He also submitted that the appellant had sufficient balance in their cenvat credit account and had not utilized the wrongly availed credit. In support of his submission, he relied upon the decision of Hon ble Karnataka High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional High Court of Bombay in the case of CCE, Pune-I vs. GL V India Pvt. Ltd. - 2015 (321) ELT 611 (Bom.) has distinguished the Bill Forge decision and has held that the assessee is liable to pay interest as per the judgment of Hon ble Supreme Court in the case of UOI vs. Ind-Swift Laboratories Ltd. - 2011 (265) ELT 3 (SC). 6. After considering the submissions of both the parties and perusal of the material on record, we find that the appellant had reversed the irregular cenvat credit taken by them on being pointed out by the Revenue. We also find that the cenvat credit was reversed before the issuance of show cause notice. Further, we find that the appellant is liable to pay interest for irregular availment of cenvat credit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our jurisdiction to decide a matter which is basically based on factual situation. We, therefore, find that it will be appropriate if the said issue is decided by the learned Tribunal. 15. In so far as the judgment of the Karnataka High Court is concerned, it appears that the said judgment is delivered by the Karnataka High Court on the facts of the said case. It would be relevant from the facts as stated in the said judgment that upon the mistake being brought to the notice of the assessee regarding the erroneous availment of the Cenvat credit, the assessee accepted the mistake and immediately reversed the entry. In the present case, the reversal of the entry is after a period of ten months. In that view of the matter, we find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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