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TMI Blog2019 (9) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... - HELD THAT:- Reliance placed in the case of M/S METACLAD INDUSTRIES VERSUS CCE, MUMBAI-II [ 2012 (11) TMI 244 - CESTAT MUMBAI ] where it was held that there is no warrant to restrict the scope of the term additional duty of customs occurring in the formula to only the additional duty leviable under sub-section (1) of section 3 and not to the additional duty leviable under sub section (5) thereof. The impugned orders are modified to the extent of setting aside the credit availed on SAD as well as credit availed on inputs for the extended period - demand of credit availed on inputs for the normal period as well as interest thereof is upheld - penalties set aside. Appeal allowed in part. - Central Excise Appeal No. 1307 of 2011 - Final Order No. 30693/2019 - Dated:- 19-6-2019 - HON BLE MS SULEKHA BEEVI C.S. MEMBER (JUDICIAL) AND HON BLE MR. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Shri R. Murlidharan, Adv. for the Appellant. Shri N. Bhanu Kiran Authorised Representative for the Respondent. ORDER PER: SULEKHA BEEVI C.S. Brief facts are that appellants are engaged in manufacture of bul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reversed by the appellant on being pointed out by the department. The availment of excess credit on inputs was only due to the error in calculation and applying incorrect formula and therefore the appellant cannot be held guilty of suppression of facts with intention to evade payment of duty. He prayed that the invocation of extended period is without basis. With regard to the credit availed on SAD, he submitted that the issue stands settled by the followings decisions: i. Sri Venkateshwara Precision Components Vs CCE Chennai [2010 (258)ELT 553 Tri(Che) ii. Metaclad Industries Vs CCE Mumbai [2013(289) ELT 381 (Tri-Mum)] iii. Zabatex Textiles India Pvt Ltd Vs CCE ST Vapi [2016(336)ELT 75 Tri Ahmd]. 3.1 The learned counsel pointed out that with effect from 07.09.2009, an amendment was brought forth in the Rules so that the credit of SAD was expressly available. The Commissioner has rightly dropped the demand after the period 07.09.2009. He relied upon the above decisions to argue that Tribunals have held that the said amendment was only clarificatory in nature and therefore is applicable to period prior to 07.09.2009. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot sustain and requires to be set aside which we hereby do. 7. The appellant has reversed the amount of excess credit availed for the normal period. The learned counsel has relied upon the case of Bill Forge Pvt Ltd (supra) to argue that they are not liable to pay interest or penalties. The learned A.R. brought to our attention the decision reported in [2019 (365)ELT 305 (Mad). In the said decision, the Hon ble High Court has relied upon the decision of the Hon ble Supreme Court in the case of UOI Vs Ind-swift Laboratories Ltd [2012(25)STR 184(SC) to hold that the interest is payable on wrongly availed credit even though reversed before utilisation. Relying upon the said decision, we are of the view that the appellant is liable to pay interest. However with regard to penalties, we find that since this has been reversed, penalties imposed in this regard are unwarranted and requires to be set aside which we hereby do. 8. The second issue is with regard to the credit availed on SAD. The decisions relied upon by the learned counsel for the appellant has clearly analysed the said issue for the period post 07.09.2009 as well as prior to 07.09.2009. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms is levied which is equal to the excise duty levied on like articles produced in India. Under sub-section (5), another additional duty of customs is levied at a rate not exceeding four per cent. of the value of the imported articles so as to counterbalance the sales tax/value added tax or any other charges on a like articles on its sale, purchase or transportation in India. Both the levies are additional duty of customs and therefore, there is no warrant to restrict the scope of the term additional duty of customs occurring in the formula mentioned above to only the additional duty leviable under sub-section (1) of Section 3 and not to the additional duty leviable under sub-section (5) thereof. As provided for in the General Clauses Act, in law, a reference to a singular terms also includes a reference to the plural. Thus for the purpose of allowing the Cenvat credit, both the additional duties have to be taken into account and restricting the benefit to only one additional duty is not warranted under the strict interpretation principle of statutory interpretation. Further, CENVAT is as beneficial provision for reducing the cascading effect of taxation and if the object of CEN ..... X X X X Extracts X X X X X X X X Extracts X X X X
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