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M/s Garden Silk Mills Ltd. Versus Commissioners of Central Excise, Customs and Service Tax-Surat-I

2015 (10) TMI 770 - CESTAT AHMEDABAD

CENVAT Credit - Invoices against which the cenvat credit availed shows the address of their Head Office whereas the cenvat credit was availed by one of the units - Penalty u/s 11AC - Held that:- Appellants had taken cenvat Credit on the basis of invoices raised in the name of their Head Office. The said Cenvat Credit has been taken by one of their manufacturing unit. There is no allegation of double availment of the said Cenvat Credit by any other unit. It is also observed that the appellants ha .....

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hat they had wrongly availed the same and they had not utilised the Cenvat Credit so availed till the time of reversal of the same.Therefore, the decision of Hon’ble Jurisdictional High Court relying upon the decision of the Hon’ble Supreme Court on the very same issue is applicable in this case. We, therefore, hold that no interest is payable in the present case. On the issue of penalty under Section 11AC, it is seen that the same is not leviable as there were no intention to evade duty, as is .....

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of Cenvat Credit on the ground that the invoices against which the cenvat credit availed shows the address of their Head Office whereas the cenvat credit was availed by one of the units. The Adjudicating Authority confirmed the demand of ₹ 1,74,74,379/- alongwith interest and equal amount of penalty under Section 11AC vide the impugned order dated 31.12.2013. 2. Heard both sides and perused the relevant papers. 3. The Learned Counsel for the appellants states that they had reversed the Cen .....

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ions of Hon ble High Courts of Bombay and of Karnataka. He also submits that there is no reason to impose penalty under Section 11AC as there was no suppression in this matter. They are duty paying assessee and filing returns and has taken Cenvat Credit in one of the units eligible for the same. He also submits that they had readily reversed the credit on being pointed out the irregularity. 4. The Learned Authorised Representative for the Revenue strongly refutes the arguments of the Learned Cou .....

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Madras High Court in the case of CCE, Chennai Vs Delphi TVS Diesel Systems Ltd 2015(322)ELT.279 (Mad.) and decision of this Hon ble Tribunal in Force Motors Ltd vs. CCE., Pune - 2015.TIOL.1833.CESTAT.Mum. The Learned Authorised Representative strongly argued that if the audit had not pointed out the wrong availment of cenvat credit, it would have resulted in short levy and by simple filing returns by itself will not rescue the appellants from the mischief of suppression. 5. We find that the app .....

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. However, they are seriously contesting the levy of interest and penalty. On the issue of levy of interest, there are conflicting decisions by various Hon ble High Courts and different Benches of the Hon ble Tribunal. It is seen that the Hon ble High Court of Gujarat has observed in Para 7 in the case of Dynaflex Pvt Ltd (supra), as under: 7. In this regard it may be germane to refer to the decision of the Apex Court in the case of Commissioner of C. Ex. Mumbai-I v. Bombay Dyeing & Mfg. Co. .....

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