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2015 (2) TMI 967 - AT - Central ExciseRecall of final order - Ex-parte order passed - Wrong Date of hearing noted down mistakenly - Held that:- Matter had been decided ex parte and the Revenue's appeal has been allowed following the Apex Court's judgment in the case of Ind -Swift Laboratories (2011 (2) TMI 6 - Supreme Court), subsequently, it has been found that interpreting the above judgement , Hon'ble Karnataka High Court in the case of CCE , Bangalore Vs. Bill Forge Pvt. Ltd. (2011 (4) TMI 969 - KARNATAKA HIGH COURT) has held that in the cases where the cenvat credit has been taken wrongly but the same had not been utilized, there would not be interest liability and that interest liability would arise only in the cases where the wrongly taken cenvat credit had also been utilized. It is seen that same view had been taken by the Hon'ble Madras High Court in the case of M/s. Strategic Engg . (P) Ltd. (2014 (11) TMI 89 - MADRAS HIGH COURT) . It is also seen that the judgment of the Karnataka High Court in the case of M/ s.Bill Forge Pvt. Ltd. (supra) has been followed by this Tribunal in the case [2014 (7) TMI 849 - CESTAT NEW DELHI]. According to the respondent, their case is covered by the above mentioned judgements of the Hon'ble Karnataka High Court and Madras High Court as in their case, there was no utilization of the wrongly availed cenvat credit. Since at the time of hearing of this matter on 23.12.2013, Revenue's appeal was disposed of ex parte and decided in the Revenue's favour , as there was nobody representing the respondent, the above mentioned judgements of the High Courts; which were favourable to the Respondent could not be considered. In my view, as held by the Tribunal in the case of Hindustan Ferro and Industries Ltd. (2009 (9) TMI 772 - CESTAT NEW DELHI), the assessee should not be made to suffer for any failure on the part of the Advocate. The Final Order dated 23.12.2013 therefore needs to be recalled and the matter needs to be re-heard on the question as to whether the judgements of Hon'ble Madras High Court and Karnataka High Courts are applicable to the facts of this case. - Order recalled.
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