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2023 (4) TMI 663 - AT - Service TaxLiability of Interest on CENVAT Credit wrongly taken (credit availed but not utilised) - appellant had taken 100% credit on capital goods in the year 2009-10 itself - As per department since appellant have erroneously taken 50% cenvat credit of Rs. 23,47,192/- in the year 2009-10 instead of taking in the year, 2010-11, the appellant was liable for payment of interest on such cenvat credit wrongly taken - Rule 14 of Cenvat Credit Rules 2004 - penalty - HELD THAT:- Rule 14 has been interpreted by the Hon’ble Supreme Court in the case of UOI AND ORS. VERSUS IND-SWIFT LABORATORIES LTD. [2011 (2) TMI 6 - SUPREME COURT] - Hon’ble Supreme Court in the case of Union of India v. Ind-Swift Laboratories Ltd., has interpreted the unamended Rule 14 which was applicable to the appellant during the financial years in question and, has categorically held that a bare reading of such rule would clearly indicate that the manufacturer or the provider of the output service becomes liable to pay interest, along with the dues where Cenvat credit has been taken or utilized wrongly or has been erroneously refunded. The Hon’ble Supreme Court, accordingly, held that if the said Rule 14 is read as a whole, the Hon’ble Supreme Court did not find any reason to read the word ‘or’ in between the expressions ‘taken’ or ‘utilized wrongly’ or ‘has been erroneously refunded’ as the word ‘and’. Another issue raised by the Appellant is that subsequent amendment brought to Rule 14 of Cenvat Credit Rules, 2004, the expression “taken or utilized wrongly” has been substituted with “taken and utilized wrongly” be read as clarificatory in nature and hence retrospective in application - this issue has also been considered by the Mumbai Bench of this Tribunal in M/S BALMER LAWRIE & CO LTD VERSUS CCE BELAPUR [2014 (2) TMI 545 - CESTAT MUMBAI] where it was held that This amendment rule makes it absolute clear that the amendment is with effect from 17-3-2012 and not before. In view of the express provisions in the Amendment Rules, the argument of the appellant that amendment being in the nature of substitution would have retrospective effect cannot be accepted. It is a trite law that every statutory provision is prospective only unless it is explicitly provided that it is retrospective in nature and the legislature provides for such retrospective operation. In the present case, no such retrospectivity has been provided by the legislature in respect of Notification 18/2012-C.E. (N.T.), dated 17-3-2012 and, therefore, the argument of the Counsel in this regard and the decisions relied upon in support of the same cannot be accepted”. There are no merit in the contentions raised in the appeal that mere availment of Cenvat credit without its utilisation of the same will not attract interest at appropriate rate under Rule 14 of Cenvat Credit Rules, 2004 as was in force during the relevant time. Penalty - HELD THAT:- Ld. Commissioner after considering all the facts rightly extended the benefits of waiver of penalty to the appellant - the said waiver of the penalty shall be subject to payment of interest of Rs 84,460/- by the Appellant within 30 days of receipts of this order. Appeal allowed in part.
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