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TMI Blog2024 (10) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... se, on which CENVAT credit has been taken is written off fully or partially or where any provision to write off fully or partially has been made in the books of account then the manufacturer or service provider, as the case may be, shall pay an amount equivalent to the CENVAT credit taken in respect of the said input or capital goods. Since the impugned period pertains to the period prior to 31/03/2012 there was no power to recover an amount equivalent to the CENVAT credit taken in respect of the said input or capital goods provided for by law. This being so the order for recovery of CENVAT Credit along with interest during the impugned period was not correct and merits to be set aside. A Division Bench of this tribunal in Ericsson India Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an amount equivalent to the CENVAT credit taken in respect of the capital goods, in contravention of Rule 3(5B) of the CENVAT Credit Rules 2004. After issuing SCN dated 04/12/2013 and following the due procedure the Original Authority ordered the recovery of CENVAT Credit of Rs 2,83,219/- along with interest and an equal penalty imposed. On appeal before the Commissioner Appeals the recovery of CENVAT Credit and interest was confirmed and the penalty set aside. Aggrieved by the order, the appellant is before this forum seeking relief from the demand of duty and interest. 2. Shri K. Mani, Ld. Consultant appeared for the appellant and Shri N. Satyanarayanan, learned Authorized Representative appeared for the Respondent. 2.1 Shri K Mani, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as known to the department and only the normal period can be invoked, hence the SCN dt 04/10/2013 was time barred. B) The goods have not been written of and were only categorised as for non-moving items and hence credit could not be denied. C) There was no machinery provision during the above said period to confirm. 4. I find that the learned Commissioner Appeals has examined the facts and circumstances of the case to ascertain whether the order of the Original Authority was fair or not and felt that the mandatory penalty imposed be waived. Thus, he was convinced that it was not a case of misdeclaration with intent to evade payment of duty. In the circumstances it is seen that since the SCN was dated 04/12/2013 the demand for the normal per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cturer of goods or the provider of output service fails to pay the amount payable under sub-rules (5), (5A), and (5B), it shall be recovered, in the manner as provided in rule 14, for recovery of CENVAT credit wrongly taken. Hence there was no provision prior to 01/03/2013 for recovery of CENVAT credit and interest thereon under Rule 3(5B) etc. 4.3 Since the impugned period pertains to the period prior to 31/03/2012 there was no power to recover an amount equivalent to the CENVAT credit taken in respect of the said input or capital goods provided for by law. This being so the order for recovery of CENVAT Credit along with interest during the impugned period was not correct and merits to be set aside. 5. A Division Bench of this tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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