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TMI Blog2018 (12) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... ider the submissions of the Revenue as regards applicability of Rule 6(3AA) of the said Rules during de novo consideration - appeal allowed - decided in favor of Revenue. - Civil Miscellaneous Appeal No.2651 of 2018 & CMP.No.19995 of 2018 - - - Dated:- 15-11-2018 - Mr.Justice T.S. Sivagnanam And Mr.Justice N. Sathish Kumar For the Appellant : Mr.K.S.Ramasamy For the Respondent : Ms.D.Naveena JUDGMENT T.S.SIVAGNANAM, J. We have the learned counsel on either side. 2. This appeal by the Revenue under Section 35G of the Central Excise Act, 1944 is directed against the order passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai (for brevity, the Tribunal) dated 22.3.2018 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NVAT credit has been wrongly taken as such availment by itself does not create any liability of payment of excise duty. The assessee's case in this appeal is that the credit has been reversed. Therefore, mere wrong availment will not attract payment of interest as reversal of credit would amount to no credit being taken. The Hon'ble Supreme Court held that the High Court misread and misinterpreted Rule 14 and wrongly read it down without properly appreciating the scope and limitation thereof. It further pointed out that a statutory provision is generally read down in order to save the said provision from being declared unconstitutional or illegal and Rule 14 specifically provides that where CENVAT credit has been taken or uti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecomes recoverable along with interest. In paragraph Nos.16 and 17 of the said Judgment, the Hon'ble Apex Court has observed as follows:- 16.A bare reading of the said Rule would indicate that the manufacturer or the provider of the output service becomes liable to pay interest along with the duty where CENVAT credit has been taken or utilized wrongly or has been erroneously refunded and that in the case of the aforesaid nature of provision of Section 11AB would apply for effecting such recovery. 17. We have very carefully read the impugned order and order of the High Court. The High Court proceeded by reading it down to mean that where CENVAT credit has been taken and utilized wrongly, interest should be payable from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith interest . 12. In the light of the above findings of the Hon'ble Apex Court, particularly with regard to Rule 14 of the Act, we do not find any justifiable ground to accept the plea of the assessee based on the decisions relied on by the assessee reported in 1996 (81) ELT 3 (SC), 2004 (174) ELT 422 (All.), and 2012 (279) ELT 209 (Kar.) 13. The learned counsel for the assessee submitted his notes on the contention that interest being compensatory and that question of payment of interest would arise only where the principal is due. To that contention, by placing reliance on the decision reported in 1996 (88) ELT 12 (SC) ( Prathiba Processors vs. Union of India as well as the decision reported in 2007 (215) ELT 3 (CCE vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Counsel for the appellant would contend that Rule 6(3AA) of the said Rules would have no application to the facts of the case. 7. We refrain ourselves from expressing any opinion at this juncture, since the Tribunal remanded the matter to the Adjudicating Authority for de novo consideration to arrive at the net liability of the assessee after calculating the same in terms of Rule 6(3AA) of the said Rules. Since jurisdictional issue has also been raised by the Revenue, the Adjudicating Authority shall also consider the submissions of the Revenue as regards applicability of Rule 6(3AA) of the said Rules during de novo consideration. 8. With the above observation and direction, the appeal filed by the Revenue is allowed. No costs. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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