9911796707
TMI Blog2019 (3) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... d that:- In view of the decision of the Tribunal in the case of Ramco Cements Ltd. [2018 (10) TMI 10 - CESTAT BANGALORE], the appellant is entitled to CENVAT credit on Clean Energy Cess which is paid as duty of excise - further, credit of BCD and Customs cess was availed only by mistake and not with intention to evade payment of duty. Therefore to that extent, the appellants are not liable for payment of penalty. Demand of Interest - Held that:- In view of the decision of Karnataka High Court in the case of Bill Forge Pvt. Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT], appellant is not liable to pay interest, if he has availed the credit and not utilized the same - But in the present case, the appellant has reversed the CENVAT credit ir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recover ineligible CENVAT credit of ₹ 19,07,912/- along with interest and imposition of penalty. After following the due process, the original authority vide Order-in- Original dt. 30/12/2016 disallowed the CENVAT credit of ₹ 18,60,495/- and confirmed demand of interest under Section 14 of CCR and imposed equal penalty of ₹ 18,60,495/- under Rule 15(2) of CCR and appropriated CENVAT credit of ₹ 13,60,495/- reversed by way of CENVAT credit and ₹ 5 lakhs paid in cash. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) who rejected the same. 3. Heard both sides and perused records. 4. Learned consultant for the appellant submitted that the impugned order is not sustainable a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and further invoking the extended period is not sustainable in law. He also submitted that the entire penalty proceedings are not tenable because there was no mala fide intention to avail the CENVAT credit on BCD. In support of this submission, he relied upon the decision of the Hon ble High Court of Gujarat in the case of CCE Vs. Gaurav Agro Plast Ltd. [2009(236) ELT 31 (Guj.)]. Further he submitted that the appellant had sufficient credit in their CENVAT account and have not utilized fully and therefore the interest and penalty are not imposable in terms of the decision of Hon ble High Court of Karnataka in the case of CCE Vs. Bill Forge Pvt. Ltd. [2012(279) ELT 209 (Kar.)]. 5. On the other hand, the learned AR defended the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable for payment of penalty in terms of the decision of the Hon ble High Court of Gujarat in the case of CCE Vs. Gaurav Agro Plast Ltd. cited supra wherein in para 4, the High Court has held as under: 4. In the aforesaid circumstances, the Court has thought it fit to proceed to decide the appeals in question. As can be seen from the first sentence of paragraph No. 3, the Tribunal has recorded, It is admitted fact that the assessee by mistake has taken credit of Basic Customs Duty ........ . . Subsequently, the extracted portion from the order of Commissioner (Appeals) as reproduced by the Tribunal establishes the fact that the assessee had at no point of time any mala fide intention. On the basis of such factual position, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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