9911796707
TMI Blog2014 (1) TMI 1901X X X X Extracts X X X X X X X X Extracts X X X X ..... if there was a procedural omission on their part. That being the position, the appellant has made out a prima facie case for waiver of the Cenvat Credit amount demanded from them Liability of Interest - HELD THAT:- Since the reversal of the credit made at the time of clearance which is in reality not a clearance actually amounts to reversal of credit, interest liability automatically arose and has to be discharged. Penalty - HELD THAT:- The law also does not permit raising of invoice on inputs which have not been received in the factory at all. Appellants have done so. Thus the appellants have neither done justice to their own system which they have adopted for accounting nor have they followed the law which is required to be foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been taken without receiving the inputs in the factory. As a result of the proceedings, Cenvat credit of ₹ 12,96,486/- wrongly availed by the appellant has been demanded with interest and penalty equal to the amount demanded has been imposed under Section 11AC of the Central Excise Act, 1944. 3. Seeking waiver of pre-deposit and stay against recovery of the dues, the learned counsel submitted that in this case, appellant followed the procedure and there is actually no revenue loss to the Government at all. Appellant had been advised that goods have to be cleared only from the factory and cannot be sent directly from the port. Taking this advice and relying on this advice even though goods were sent directly from the port, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly, the appellants have reversed the credit and therefore seeking reversal again would mean payment of duty twice on the same goods. The law does not require reversal of the Cenvat credit taken twice by an assessee even if there was a procedural omission on their part. That being the position, I find that appellant has made out a prima facie case for waiver of the Cenvat Credit amount demanded from them. Nevertheless as submitted by the learned AR, there was a time gap between the availment of credit and subsequent reversal. If there was such a gap between the availment and reversal, the appellant is required to pay interest and in my opinion that cannot be waived. Therefore, the appellant is directed to find out whether any interest is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears not imposable. Therefore, the requirement of pre-deposit of penalty also has to be waived and stay against recovery is to be granted. 7. In the result, waiver of pre-deposit of Cenvat credit demanded and penalty imposed is granted and stay against recovery is ordered during the pendency of appeal. As regards interest, I have already taken a view that appellant should deposit the same since interest is an appendage to the principal. The waiver of pre-deposit and stay of recovery of the other dues would be subject to the condition that the appellant calculates the interest and deposits the same within eight weeks from today and reports compliance on 11-4-2014. (Order dictated and pronounced in open Court) - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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