TMI Blog2014 (8) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... der that the appellant has made out a prima facie case in respect of the amount of ₹ 3,25,168/- and therefore the requirement of pre-deposit of this amount has to be waived. Demand of interest on reversal of cenvat credit - Held that:- From the reading of Section 75 there is no requirement of determination of the amount to be demanded for demanding interest. In any case in this case there is no dispute as regards the amount of credit wrongly taken and it is a fact that by the time department found out about wrong availment, the appellant had become eligible for the credit from 1-4-2008. That being the position, the a claim that duty should have been quantified and demanded (in this case wrongly availed credit) becomes only a techni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to September 2007 has been demanded with interest. 3. As regards the second issue namely availment of Cenvat credit of Central Excise duty paid on SIM Cards, the learned counsel submits that the credit has been denied on the ground that SIM Cards are capital goods classifiable under Chapter CETH 85 and therefore credit could not have been taken. It was submitted by the learned counsel that credit has been taken treating the SIM Cards as inputs and he submits that the SIM Cards are essential inputs for providing the output service namely the Telecommunication Service. 4. As regards the second issue namely demand for interest on the excess credit of 50% taken during the period from April 2006 to September 2006, the learned counsel submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been rightly demanded. As regards SIM Cards, he would submit that these are capital goods and excluded from the definition of capital goods and therefore credit is not admissible. 5. I have considered the submissions made by both the sides. 5.1 As regards SIM Cards, I find that the appellants purchase the SIM Cards, load the software and thereafter sell it through the dealers and after sale to a customer, the SIM Card is activated and the process of provision of Telecommunication service commences. That being the position, the claim of the appellant that SIM Card is an input for them and is used for providing the output service on a prima facie basis seems to be justifiable. Therefore I consider that the appellant has made out a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory provision is generally read down in order to save the said provision from being declared unconstitutional or illegal. Rule 14 specifically provides that where Cenvat credit has been taken or utilized wrongly or has been erroneously refunded, the same along with interest would be recovered from the manufacturer or the provider of the output service. The issue is as to whether the aforesaid word OR appearing in Rule 14, twice, could be read as AND by way of reading it down as has been done by the High Court. If the aforesaid provision is read as a whole we find no reason to read the word OR in between the expressions taken or utilized wrongly or has been erroneously refunded as the word AND . On the happening of any of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Rule and the Hon ble High Court has agreed that in view of the judgment of the Hon ble Supreme Court in the case of Ind-Swift Laboratories Ltd. question of reading OR as AND does not arise. I am unable to appreciate how this paragraph helps the appellant. In any case in the case of Bill Forge, Hon ble High Court had taken a view that if the credit was taken wrongly and refunded as such by the assessee himself and reversed before utilizing the same, the judgment of the Hon ble Supreme Court may not applicable. It is not the case of the appellant here that they had actually reversed the credit before 31-3-2007 and took it back when they became eligible. Only when the department pointed out the same and demanded interest, they have made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice . 75. Interest on delayed payment of Service Tax. - Every person responsible for collecting Service Tax and paying it to the credit of the Central Government in accordance with the provisions of Section 68, who fails to credit the tax or any part thereof to the account of the Central Government within the period specified in that section, shall pay simple interest at the rate of one and one-half per cent for every month or part of a month by which such crediting of the tax or any part thereof is delayed. From the reading ..... X X X X Extracts X X X X X X X X Extracts X X X X
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