9911796707
TMI Blog2019 (7) TMI 2028X X X X Extracts X X X X X X X X Extracts X X X X ..... or duty for that matter requires to be paid twice. The appellants have reversed the credit before the order of the confirmation of reversal in view of Hon ble Supreme Court s judgment in the case of Ballarpur Industries [ 1989 (9) TMI 102 - SUPREME COURT] . The appellants have demonstrated that they have only availed the credit and have not utilised it. As longs as the credit is not utilised, the entries in the register are just book entries and by no stretch of imagination can be treated as duty paid so as to invite the provisions of Section 11B of CEA 1944. The Assistant Commissioner himself has found that provisions of unjust enrichment are not applicable in such cases. In view of the judgment cited, the appellants are entitled to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 1,91,93,628/- being the credit on inputs used in the manufacture of rayon grade wood pulp under protest. Commissioner of Central Excise vide OIO No. 23/2007 dt. 23/01/2008 confirmed the demand. On an appeal filed by the appellants, CESTAT vide Final Order No. 1242 dt. 19/08/2010 set aside the above OIO for re-determination of liability in terms of retrospective amendment to Rule 6 of CENVAT Credit Rules, 2004 (CCR for short). The appellants paid an amount of Rs. 88,22,475/- towards the interest on account of wood pulp transferred to Nagda unit. On 25/10/2010, the appellants also filed an application under Section 72(2) of the Finance Act, 2010 requesting for remitting the balance amount of Rs. 1,08,82,742/. (i.e. Rs. 1,91,93,628/- - R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nrichment is not applicable. The refund claimed by the appellants is of Cenvat credit attributable to inputs used in the manufacture of rayon grade wood pulp which is further captively consumed by them in the manufacture of VSF. The learned counsel for the appellants further submits that the OIO has ordered the recovery and appropriation of Rs. 88,22,475/- being interest on the CENVAT Credit on the inputs used in the manufacture of rayon grade wood pulp cleared from the factory without payment f duty of Rs. 91,82,920/-, as they have reversed the credit prior to utilisation. Therefore, it amounts to non-availment and when the credit is not availed, interest is not payable. He further submits that Rule 14 of CCR provides for recovery of inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llarpur Industries. 5. Learned AR for the Department has reiterated the findings of the OIO. 6. Heard both sides and perused the records of the case. Brief issues in this case are as to whether the appellants are entitled for refund of excess credit reversed by them and whether they are liable to pay interest on the amount held to be reversable by the learned Commissioner. The appellants have availed credit of Rs. 1,91,93,628/- on the inputs used in the manufacture of wood pulp during the period March 2004 to September 2004. The appellants contended that they have not utilized the credit as they have sufficient balance as can be seen from the ER1 returns they filed from time to time. Initially the department has issued a show-cause notice d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and corrected the mistake. The Tribunal only viewed it as an arithmetical error which the respondent was authorized to correct. Insofar as the finding of the Tribunal that basic excise duty of Rs. 3.58 lacs was already paid by the respondent earlier and it was repaid while depositing the differential VAT duty was concerned, the Department has not raised any serious objection either in this tax appeal or before us through oral submissions. We therefore proceed on such basis. That being the situation, all that the respondent did was to correct the arithmetical error by making necessary entries in the register even before filing the form at the end of the month before the Excise Authorities. In the present case, when we find that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As longs as the credit is not utilised, the entries in the register are just book entries and by no stretch of imagination can be treated as duty paid so as to invite the provisions of Section 11B of CEA 1944. The Assistant Commissioner himself has found that provisions of unjust enrichment are not applicable in such cases. In view of the judgment cited above, we hold that the appellants are entitled to take recredit of the excess reversal. Moreover in view of the wordings of Rule 14 of CCR, payment of interest, if any, comes into play only when the credit is utilised. As the appellants have successfully demonstrated the credit is not utilised, we hold that payment of interest is not warranted. 8. In view of the above, we allow the appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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