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TMI Blog2018 (12) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... PREME COURT], where it was held that It has to be from the place of removal upto a certain point. Therefore, tax paid on the transportation of the final product from the place of removal upto the first point, whether it is depot or the customer, has to be allowed. The demand of cenvat credit is set aside - The demand of interest is also set aside - penalty imposed under Rule 15(3) of the Cenvat Credit Rules, 2004 is upheld. Appeal allowed in part. - Appeal No. E/282/2009 - FO/76938/2018 - Dated:- 5-11-2018 - Shri P.K. Choudhary, Member (Judicial) And Shri Bijay Kumar, Member (Technical) Shri Arvind Baheti, CA for the Appellant (s) Shri A. Roy, Suptd.(AR) for the Respondent (s) ORDER Per Shri P.K. Choudhary The brief facts of the case are that the appellant is engaged in the manufacture and sale of Carbon Black with its head office located at Kolkata. The Durgapur factory is registered with the jurisdictional central excise authorities for manufacture of carbon black. The head office of the appellant holds a centralized service tax registration for discharging the service tax liability in respect of services taxable on a reverse charge basis. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months. Such credit remained in the books of the plant at all times until it was discovered that the cenvat credit of ₹ 66,69,545 comprised in the invoices referred at Sl.No.2 to 7 was inadvertently distributed to the Durgapur Plant. Accordingly, such credit was reversed by the Durgapur plant on 26.07.2008 from its cenvat credit register except a part of the education cess and higher education cess aggregating ₹ 17362 paid from PLA on 05.08.2008. The credit so reversed and paid by the plant was duly disclosed in the returns filed for August, 2008. Show cause notice dated 30.07.2008 was issued covering all the 7 invoices proposing denial of cenvat credit to the appellant on the ground that the said ISD invoices were incomplete in as much as a) The invoices neither contain the name and address of the person providing the service nor the serial no and date of invoice issued by the service provider as required under Rule 4A(1) and Rule 4A(2) of the Service Tax Rules. b) The ISD invoices have been issued in clear violation of the provisions of Rule 9(1)(g) and Rule 9(2) of the Cenvat Credit Rules, 2004. The show cause notice has been confirmed by the ld. Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicating authority for verification of the annexures, by Final Order No.75249/2015 dated 24.03.2015 passed in Excise Appeal No.234/09 as also in Excise Appeal No.208/2008. 3. Ld. DR for the revenue justified the impugned order. 4. Heard both sides and perused the appeal records. 5. We find from the adjudication order that the appellant had taken credit but not utilized the same and reversed the same prior to the issuance of the show cause notice. The Adjudicating Authority following the Board s Circular dated 03.09.2009 observed that interest is payable even when credit has not been utilized. We find that the Larger Bench of the Tribunal in the case of J.K.Tyre Industries Ltd. v. Asst. Commr. of C.Ex., Mysore [2016 (340) E.L.T. 393 (Tri.-LB)] held that wrong availment of Cenvat Credit, interest is not payable, if reversed before utilization. The Tribunal in the case of Garden Silk Mills Ltd. v. Commissioners of Central Excise, Customs Service Tax- Surat-I [2015 SCC Online CESTAT 2361] on the identical issue held in favour of the assessee. The relevant portion of the said decision is reproduced below:- 4. The learned Authorised Representative for the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een erroneously refunded. Thus, both, in case where CENVAT credit has been wrongly taken or wrongly utilized, interest, is recoverable under Rule 14 of the Rules. However, in the light of the aforesaid decision of the Supreme Court, when the entry has been reversed before utilization, the same amounts to not taking credit. In the circumstances, where CENVAT credit is taken wrongly, but reversed before the same is utilized, it amounts to not taking credit. Accordingly, when no credit is taken, the provisions of Rule 14 of the Rules would not be attracted. The view adopted by the Tribunal as well as the authorities below is, therefore, in consonance with the view taken by the Supreme Court in the above referred decision. 6. We find that in this case the appellant had reversed the credit as soon as it was pointed out that they had wrongly availed the same, and they had not utilised the Cenvat Credit so availed till the time of reversal of the same. Therefore, the decision of Hon ble Jurisdictional High Court, relying upon the decision of the Hon ble Supreme Court on the very same issue is applicable in this case. We, therefore, hold that no interest is payable in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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