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TMI Blog2018 (9) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... ospective effect, cannot be used as an aid to interpret the statutory provision, which existed prior to the amendment, unless and until it is held to be clarificatory - No such argument was advanced to state that the amendment to Rule 14 of the CCR, 2004 was clarificatory in nature. Appeal dismissed - decided against Revenue. - Civil Miscellaneous Appeal No. 1543 of 2018 - - - Dated:- 14-8-2018 - T. S. Sivagnanam And V. Bhavani Subbaroyan, JJ. For Appellant : Mr.A.P. Srinivas, Senior Standing Counsel For Respondent : M/s.D.Naveena JUDGMENT [ Delivered by T. S. Sivagnanam, J. ] This appeal, by the Revenue, is directed against the order passed by the Customs, Excise and Service Tax appellate Tribunal (hereinafter referred to as the Tribunal ), South Zonal Bench, Chennai, arising out of an Order-in-Appeal No.124/2014-CE, dated 23.04.2014 passed by the Commissioner of Central Excise (Appeals), Salem. 2.The appeal before the Tribunal was at the instance of the assessee, who had challenged the correctness of the order passed by the Commissioner (Appeals), confirming the order dated 20.11.2013. By the said order, the Adjudicating Authority while ordering in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 215) E.L.T. 3 (SC). Thus, taking into consideration the said decision and the practical difficulty, held that imposition of penalty of ₹ 1,00,000/- will serve the interest of justice. Accordingly, the appeal stood disposed of on the above terms. 8.This Civil Miscellaneous Appeal has been filed by the Revenue raising the following substantial questions of law. (i) Whether the Hon'ble Tribunal has committed substantial error in law by waivering the demand of interest under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11 AB of the Central Excise Act when the legal position is settled by the Hon'ble Supreme Court in the case of Union of India Versus Ind-Swift Laboratories Ltd. in Civil Appeal No.1976 of 2011 (2011 (265) E.L.T. 3 (S.C.)) dated 21.2.2011, that the word OR in between the expressions 'Taken or utilised wrongly or has been erroneously refunded as the word AND on the happening of any of the three circumstances such credit becomes recoverable along with interest'? (ii) Whether the Hon'ble Tribunal has committed substantial error by waiving the penalty to the extent of ₹ 1,00,000/- against the equal penalty amounting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore stage of exemption and on payment of duty on input (yarn), the assessee got credit, which was never utilized and before utilization, entry has been reversed which amounts to not taking credit. Therefore, while interpreting the effect of the said notification, the decision was rendered. Therefore, the decision in Bombay Dyeing Manufacturing Co. Ltd. (supra) cannot be applied to the facts and circumstances of the case. 12.The learned counsel appearing for the assessee referred to the decision in the case of Commissioner of C. Ex., Madruai vs. Strategic Engineering (P) Ltd. [2014 (310) E.L.T. 509 (Madras)]. The Hon'ble Division Bench of this Court (Madurai Bench) took note of the judgment of the Hon'ble Supreme Court in the case of Ind-Swift Laboratories Ltd. (supra), which interpreted the word or occurring in Rule 14 of the CCR, 2004. The operative portions of the judgment read as follows:- 15.In order to appreciate the findings recorded by the High Court by way of reading down the provision of Rule 14, we deem it appropriate to extract the said Rule at this stage which is as follows: 14. Recovery of Cenvat credit wrongly taken or erroneously refunded:- Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng answers to all doubts, which existed earlier. We are unable to persuade ourselves to agree with the observations made in the case of Strategic Engineering (P) Ltd. (supra), as the amendment is not clarificatory to be held to be retrospective. 15.One more aspect, which prompts us to say so, is in the light of the decision of this Court in the case of Commissioner of Central Excise, Chennai-IV vs. Sundaram Fasteners Limited [2014 (304) E.L.T. 7 (Madras)], wherein one of us (TSSJ) was a party. Identical issue arose for consideration and the Court, after taking into consideration the decisions in the cases of (i) Chandrapur Magnet Wires (P) Ltd. vs. Collector reported in 1996 (81) E.L.T. 3 (SC); (ii) CIT vs. Poddar Cement (P) Ltd. reported in 226 ITR 625 (SC); (iii) Commissioner vs. Bombay Dyeing and Mfg. Co. Ltd. reported in 2007 (215) E.L.T. 3 (SC); and (iv) Pratibha Processors vs. Union of India reported in 1996 (88) E.L.T. 12 (SC), held as follows;- 7. The next question which falls for consideration is as to whether the assessee is liable to pay interest under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11AB of the Central Excise Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable from the date when CENVAT Credit is wrongly utilized. 9. The learned counsel appearing for the assesee sought to distinguish the decision of the Hon'ble Supreme Court in the case of IND-SWIFT LABORATORIES LTD. by stating that, that was a case where the CENVAT credit was taken and utilized and not a case where CENVAT credit has been reversed as that of the case of the assessee herein. It is his further submission that reversal of credit would amount to no credit being taken. In this regard, reliance has been placed on the decision of Allahabad High Court in the case of Hello Minerals Water (P) Ltd., vs. Union of India reported in 2004 (174) ELT 422 (All.), the decision of the Karnataka High Court in the case of Commissioner of C.Ex. S.T., LTU. Bangalore vs. Bill Forge Pvt.Ltd reported in 2012 (279) ELT 209 (Kar.) and the decision of the Hon'ble Apex Court in the case of Chandrapur Magnet Wires (P) Ltd. vs. Collector of C.Excise, Nagpur reported in 1996 (81) ELT 3 (SC). 10. We do not agree with the submissions made by the learned counsel for the assessee, as the decisions rendered in the aforesaid cases by the Allahabad High Court as well as the Karna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .The above referred decision in Sundaram Fasteners Limited (supra) was rendered on 30.01.2014 and it appears that the same was not placed before the Division Bench, while the decision was rendered in the case of Strategic Engineering (P) Ltd. (supra), which was rendered on 10.02.2014. As observed earlier, the amendment to the statute not being clarificatory cannot be retrospective. Thus, an amendment to a statue done prospectively cannot be interpreted to be an answer to doubts which had arisen earlier to the amendment. Thus, we are not persuaded to apply the decision in Strategic Engineering (P) Ltd. (supra). 17.It is submitted by the learned counsel for the assessee that the amendment to Rule 14 of CCR, 2004 was not placed before the Division Bench in Sundaram Fasteners Limited (supra). As pointed out earlier, the amendment can have no impact on the present proceedings, as admittedly, the period in question is between July, 2008 to March, 2009. In any event, as observed by us earlier, the amendment cannot be treated to have retrospective effect and an amendment to a statute, which has been given prospective effect, cannot be used as an aid to interpret the statutory provision, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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