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TMI Blog2024 (5) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... own case [ 2023 (11) TMI 467 - CESTAT CHENNAI] in Final Order No. 41026/2023 dated 09.11.2023 wherein this Tribunal held that ' the appellant though have taken credit irregularly or wrongly in the books it was never utilized. So, it is not justified to attribute any motive to evade tax to the conduct of the appellant. Even irregularly availed CENVAT Credit has been reversed by the appellant on being pointed out much before the issuance of the Show Cause Notice. As such, invoking extended period is not justified in this appeal.' It is found that the appellant though have taken credit merely in the books, it was never utilised. So, it is not justified to attribute any motive to evade tax to the conduct of the appellant. Even irregularly availed Cenvat credit has been reversed by the appellant on being pointed out much before the issuance of the Show Cause Notice. As such, invoking the extended period is not justified in this appeal. Thus, interest is not leviable on the irregular availment of credit and excess credit and also that extended period of limitation is not invokable - the impugned order is set aside - appeal allowed. - HON BLE MS. SULEKHA BEEVI C.S., MEMBER (JUD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of duty on the clearance of final products as they were maintaining huge balance of Cenvat credit, hence no interest was payable and relied on various decisions supporting their stance. Further, it was stressed that there was no suppression of facts warranting imposition of penalty. 2.3 After due process of law, the adjudicating authority vide impugned Order-in-Original No. LTU/79-81/2015 dated 20.03.2015 confirmed the demand of Cenvat Credit wrongly availed totalling Rs.5,76,079/- and appropriated the amount already paid towards the demand but dropped the proposals for levy of interest and imposition of penalty proposed in the Show Cause Notices. 2.4 Aggrieved, the Department preferred an appeal before the Commissioner (Appeals), by relying on the decision in the case of M/s. Ind Swift Laboratories Ltd. [2011 (256) ELT 3 (SC)] and the lower appellate authority vide Order-in-Appeal No. 265/2017 (CTA-II) dated 30.09.2017 set aside the impugned Order-in-Original and confirmed the levy of interest up to 17.03.2012 and imposition of equal penalty as proposed in the Show Cause Notice. The lower appellate authority had in the impugned order discussed the provisions of Rule 14 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 209 (Kar.)] , wherein it was held as follows:- 21. Interest is compensatory in character, and is imposed on an assessee, who has withheld payment of any tax, as and when it is due and payable. The levy of interest is on the actual amount which is withheld and the extent of delay in paying tax on the due date. If there is no liability to pay tax, there is no liability to pay interest. Section 11AB of the Act is attracted only on delayed payment of duty i.e., where only duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, the person liable to pay duty, shall in addition to the duty is liable to pay interest. Section do not stipulate interest is payable from the date of book entry, showing entitlement of Cenvat credit. Interest cannot be claimed from the date of wrong availment of CENVAT credit and that the interest would be payable from the date CENVAT credit is taken or utilized wrongly. 22. In the instant case, the facts are not in dispute. The assessee had availed wrongly the Cenvat credit on capital goods. Before the credit was taken or utilized, the mistake was brought to its notice. The assessee accepted the mistake and imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in favour of the assessee. 9. Further, in the case of Lakshmi Machine Works Ltd. Vs. Commissioner of Central Excise, Coimbatore [2010 (8) TMI 403-CESTAT] it was held as follows:- 6. I have carefully considered the submissions from both sides and perused the records. Rule 14 of the CENVAT Credit Rules, 2004 read as under :- Recovery of CENVAT credit wrongly taken or erroneously refunded. - Where the CENVAT credit has been taken or utilised wrongly or has been erroneously refunded, the same along with interest shall be recovered from the manufacturer or the provider of the output service and the provisions of sections 11A and 11AB of the Excise Act or sections 73 and 75 of the Finance Act, shall apply mutatis mutandis for effecting such recoveries . The credit taken under the CENVAT Credit Scheme relates to duty paid by the raw material suppliers. The credit taken by the recipient-manufacturer is actually utilised only when debited towards duty on the final products. Merely by taking a wrong credit inadvertently, the assessee has not availed any monetary benefit. In an analogous situation if the assessee-manufacturer maintains a PLA account, the balance available in the said accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he availed credit for remittance of duty. 7.1.6 The same view was taken by the Tribunal in the following cases:- i. Commissioner of Central Excise Vs. Sharda Energy Minerals Ltd. [2013 (291) ELT 404 (Tri.-Del.)] ii. Gary Pharmaceuticals (P) Ltd. Vs. Commissioner of Central Excise, [2013 (297) ELT 391 (Tri.-Del.)] iii. Commissioner of Central Excise Vs. Balrampur Chini Mills Ltd., [2013-TIOL-1142- CESTAT-Del] iv. M/s. Gurmehar Construction Vs. Commissioner of Central Excise [2014-TIOL-1205- CESTAT-Del] 7.1.7 Appreciating the ratio of above decisions, we find that the recovery of interest is not legally justified and not 7.2.2 We find that the appellant though have taken credit irregularly or wrongly in the books it was never utilized. So, it is not justified to attribute any motive to evade tax to the conduct of the appellant. Even irregularly availed CENVAT Credit has been reversed by the appellant on being pointed out much before the issuance of the Show Cause Notice. As such, invoking extended period is not justified in this appeal. Thus, the appellant succeeds on limitation also.‟‟ 12. Even in this appeal, it is on record that the appellant has reversed the entire Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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