TMI Blog2013 (3) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the date of taking of credit to the date of its reversal, whether or not the credit was utilized. This is the clear result of the interpretation given by the apex court to the provisions of Rule 14. It is binding on this Tribunal under Article 141 of the Constitution of India. Thus the short question (whether the appellant is liable to pay interest under Rule 14 of the CCR 2004 on the amounts of CENVAT credit in question) has to be settled in favour of the Revenue. - Central Excise Appeal No. 1480/2011 - 25036/2013 - Dated:- 8-2-2013 - Mr. P.G. Chacko, J. Ms Sabrina Cano, Superintendent (AR) for the respondent Mr. P.G. Chacko, J. This appeal filed by the assessee is against demand of interest of Rs. 57,784/- raised under Rule 14 of the CENVAT Credit Rules 2004 read with Section 11AB of the Central Excise Act. The appellant has filed written submissions, wherein, inter alia, reliance has been placed on a decision of the Hon ble Karnataka High Court. The written submissions, however, are not accompanied by any copy of the Hon ble High Court s judgment, which has been produced by the learned Superintendent (AR). The learned Superintendent makes a lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions invoked in the show-cause notice). The proposals in the notice were contested by the party, stating that no amount of credit had been utilized by them and that the entire amount of credit taken had been reversed before the issuance of the show-cause notice and therefore they were not liable to pay interest or to be penalized. The adjudicating authority rejected these arguments and, in view of Rule 14 of the CENVAT Credit Rules 2004, confirmed the demand of interest under Section 11AB of the Act. It appears, the department had no grievance against the non-imposition of penalty on the party. Against the demand of interest, the party preferred an appeal to the Commissioner (Appeals) but did not succeed. Hence the present appeal against the order of the appellate authority. 4. It appears from the grounds of this appeal coupled with the written submissions of the appellant that the entire challenge is based on two facts which are that the CENVAT credits in question were never utilized and that they were reversed before the issuance of the show-cause notice. The case of the appellant is that Rule 14 of the CCR 2004 as interpreted by the Hon ble High Court in its judgment da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be followed. Obviously, the concept of per incuriam is being invoked against the Hon ble High Court s decision. 5. At this juncture, the learned Superintendent (AR) argues, in answer to certain queries from the bench, that it is open to this Tribunal to consider the Hon ble High Court s decision per incuriam. In support of this argument, reliance is placed on a judgment of the Hon ble Andhra Pradesh High Court viz. judgment dated 13.08.2002 in W.P. No. 14175/2002 (K. Srinivas Rao Vs. State of A.P. and Ors.). Particular reference has been made to the following paragraphs of the High Court s judgment: Per incuriam and sub silentio are exceptions to the concept of stare decisis. Sir John Salmond in his Treatise on Jurisprudence has aptly stated the circumstances under which a precedent can be treated per incuriam. A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute, i.e., in ignorance of a statute or a rule having the force of statute, i.e., delegated legislation. This rule was laid down for the House of Lords by Lord Halsbury in the leading case (London Street Tramways V. L.C.C. (1898) A.C. 375) and for the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recedent as per incuriam. I have to analyse the operative part of the judgment in Bill Forge case against this backdrop. In the said case, after taking cognizance of the apex court s ruling that the question of reading the word and in the place of or would not arise, the Hon ble High Court proceeded to consider the implications of taking and utilization of credit. In para 20 of its judgment, the Hon ble High Court observed thus: Actually, the credit is taken at the time of the removal of the excisable product. It is in the nature of a set off or an adjustment . The Hon ble High Court also observed that the reversal of CENVAT credit before its utilization amounted to non-taking of credit. The finding of the Hon ble High Court that CENVAT credit is taken at the time of removal of the final product does not take into account Rule 3(1) of the CCR 2004 which provides for the taking of CENVAT credit by a manufacturer of excisable goods or a provider of taxable service upon receipt of inputs, input service and capital goods in the factory/premises. Sub-rule 4 of Rule 3 provides for utilization of the credit so taken, which happens at the time of removal of excisable products by a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
