TMI Blog2019 (3) TMI 1375X X X X Extracts X X X X X X X X Extracts X X X X ..... ch shows that the closing credit in the CENVAT credit account was much more than the total amount of credit as wrongly availed and further the said credit was not utilized by the appellant. In view of the decision of Karnataka High Court in the case of Bill Forge Pvt. Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT] which clearly hold that if the CENVAT credit wrongly availed is reversed before utilization, then the assessee is not liable to pay interest and penalty. Appeal allowed - decided in favor of appellant. - E/21105/2018-SM - Final Order No. 20289 /2019 - Dated:- 25-3-2019 - SHRI S.S GARG, JUDICIAL MEMBER For the Appellant : Shri Kuriyan Thomas, Advocate For the Respondent : Shri K. Murali, Superintendent(AR) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T credit wrongly taken has not been utilized for any payment purpose and hence the question of payment of interest and penalty does not arise. Thereafter the appellant received a show-cause notice asking the appellant to show-cause as to why ₹ 29,17,911/- being the CENVAT credit taken should not be demanded and recovered from them along with interest and penalty under Rule 14 of CCR read with Section 11A(1) of the Central Excise Act, 1944. After following due process, the Additional Commissioner vide order dt. 12/04/2016 confirmed the proposal in the show-cause notice. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) who rejected the same. Hence the present appeal. 3. Heard both sides and perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as provided under Rule 6(3)( and Rule 6(3A) and there is no independent provisions for recovery. He also submitted that imposition of penalty under Section 11AC could not be made as the essential pre-condition being short-levy or short payment of duty does not arise in the instant case as there was no utlisation of credit and consequently there cannot be any short-payment of duty owing to erroneous availment of credit. Further, there is no allegation in the show-cause notice of any fraud, wilfull suppression of facts on the part of the appellant in mistakenly availing the credit. In support of his submissions, he relied upon the following decisions:- i. Hindustan Petroleum Corporation Vs. CCE, Mumbai-II [2018(12) GSTL 305 (Tri. Mum.)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Act. It is pertinent to note that prior to the amendment, the recovery of interest was permissible when CENVAT credit has been wrongly taken or utilized and in the present case, the appellant reversed the CENVAT credit attributable to trading activity and there happened to be a short-reversal amounting to ₹ 29,17/911/- which was reversed by 17/09/2014 [Rs.21,81,260/- on 11/08/2014 and ₹ 7,29,651/- on 17/09/2014]. Further I find that as per the documents placed on record including various returns and CENVAT credit account, which shows that the closing credit in the CENVAT credit account was much more than the total amount of credit as wrongly availed and further the said credit was not utilized by the appellant. Further in vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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