TMI Blog2013 (1) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 (1) TMI 72 - GUJARAT HIGH COURT] since the Board itself had directed the lower authorities not to file an appeal before the Tribunal for an amount of less than Rs.1,00,000/- vide the circular dated 20.10.10, the appeal filed by the Revenue is dismissed - appeal of revenue for enhancement of penalty cannot be allowed. Demand for CENVAT Credit, interest and imposition of penalty - assessee appeal - Held that:- As decided in case of Ind-Swift Laboratories Ltd. [2011 (2) TMI 6 - SUPREME COURT] interest has to be paid even if credit has not been utilised. Therefore, assessee has not made out a case for waiver of interest and demand for interest has to be upheld. Penalty - Held that:- The appellant had substantial amount of credit in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which culminated in confirmation and appropriation of wrongly availed cenvat credit and demand for interest of Rs. 34,099/- and imposition of penalty of Rs. 1,53,138/- by the adjudicating authority. On an appeal filed by the respondent, learned Commissioner in the impugned order upheld the demand for cenvat credit but set-aside the demand for interest and reduced the penalty to Rs. 25,000/- Revenue is in appeal against this decision and respondent have filed cross objection. Further respondents have also filed an appeal against the confirmation of interest by the Commissioner. 2. As regards the appeal filed by the Revenue, learned counsel for the assessee submitted that in this case the appeal was filed by the revenue on 17.02.2011 agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the demand for interest and imposition of penalty. As regards interest, with the decision of the Hon'ble Supreme Court in the case of Ind-swift Laboratories Limited, the matter attained finality and according to this decision, interest has to be paid even if credit has not been utilised. Therefore, assessee has not made out a case for waiver of interest and demand for interest has to be upheld. As regards penalty, the assessee has relied upon the decision of the Hon'ble High Court of Allahabad in the case of Ashoka Metals Dicor (P) Limited, in Para 9 and 10, the Hon'ble High Court observed as follow:- 9. It is undisputed fact that the Assessee was entitled for the Cenvat Credit under the Cenvat Credit Rules. It is also not dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvat record and was not in fact utilized. Against the above decision of the Punjab Haryana High Court, Special Leave to Appeal (Civil) No. CC3915/2007 filed by Commissioner of Central Excise, Delhi-III has been rejected by the Apex Court on 14-5-2007 [2007 (214) E.L.T. A50 (S.C.)]. The decisions cited by the learned Additional Chief Standing Counsel are distinguishable and do not apply to the facts of the present case. In the case of Commissioner of Central Excise, Pune v. M/s. SKF India Ltd. (supra) it has been held that on revision of prices retrospectively invoices were issued and differential duty was paid. It has also been held by the Apex Court that payment of differential duty clearly falls under Section 11A(2B) of the Act and henc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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