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2022 (3) TMI 442 - HC - GSTSeeking to call for the records pertaining to the impugned order - reversal of CENVAT Credit - filed returns were rejected due to technical glitches - wilful suppression of facts or not - Demand of interest - levy of penalty under Section 122 (2) (a) of CGST Act - HELD THAT:- Since the petitioner has given up his challenge regarding reversal of CENVAT Credit, we need not take up the issue and Central Excise traverse on these issues. However, insofar as the third and fourth clause of the interim order, where, interest was demanded or penalty was imposed are concerned, since there has been a case and counter case projected by the learned counsel for the parties, those issues alone are dealt with. Penalty - Demand of Interest - reason for imposing penalty is that the petitioner has wrongly availed or utilised the Input Tax Credit - HELD THAT:- The fact remains that, the petitioner has never utilised or availed the ITC wrongly. The entire amount has been in the credit till the impugned order is passed, that is the reason, why, the Central Excise respondent revenue was able to appropriate the amount from the credit, that is, the electronic credit ledger of the petitioner. Therefore, since at no point of time, the ITC was either availed or utilised by the petitioner, that is, one of the pre-requisite under which only penalty can be imposed under Section 122(2)(a), such situation, since is not available in the present case, such kind of penalty cannot be imposed against the petitioner - thus, insofar as the demand of interest as well as the imposition of penalty is concerned, which is form part of the impugned order under Clause 3 and 4 of the operative portion, those demand made by the respondents or imposing penalty against the petitioner are untenable and therefore, that are liable to be interfered with. This writ petition is partly allowed.
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