TMI Blog2015 (4) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Gurhmehar Construction Vs CCE Raipur (2014 (7) TMI 849 - CESTAT NEW DELHI) had allowed the appeal by relying Hon ble High Court s decision in the case of Commissioner Vs Bill Forge Pvt. Ltd. - [2011 (4) TMI 969 - KARNATAKA HIGH COURT] and also distinguished the Supreme Court in the case of UOI Vs Indo-Swift laboratories Ltd. - [2011 (2) TMI 6 - Supreme Court]. - ratio of the Tribunal’s decision and the Hon ble High Court decisions are squarely applicable to the present case. Therefore, I hold that respondents are not liable for interest on the credit already reversed. Accordingly, the impugned order is upheld - Decided against Revenue. - Appeal No.E/284/2006 & E/CO/40243/2014 - FINAL ORDER No.41008/2015 - Dated:- 24-4-2015 - Shri R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly reversed the credit. Therefore, interest is rightly demanded. He relied on the following case laws :- (i) CCE Chennai-IV Vs Sundaram Fasteners Ltd. 2014-TIOL-20SC-MAD-CX (ii) UOI Vs Ind-Swift Laboratories Ltd. 2012 (25) STR 184 (SC) 4. On the other hand, Ld. Advocate for the respondent reiterates the findings of the impugned order and also cross objections. He submits that the CVD credit availed in March 2004 and September 2004 were not utilized it was remaining in the balance and immediately they reversed the credit in Nov-04. Therefore, the Commissioner (Appeals) has rightly set aside the interest and penalty. He relied on the following decisions :- (i) Gestamp Sungwoo automotive (Chennai) Pvt. Ltd Vs CCE Chennai-IV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is seen that the Hon ble Karnataka High Court in the case of M/s. Bill Forge Pvt. Ltd. has discussed and considered the judgment of Honble Supreme Court in the case of M/s. Indo-Swift Laboratories (supra) in quite some detail in Paras 16 to 20 and then goes on to enumerate the principle of charging interest in Para 21 which is quoted below :- 21. Interest is compensatory in character, and is imposed on an assessee, who has withheld payment of any tax, as and when it is due and payable. The levy of interest is on the actual amount which is withheld and the extent of delay in paying tax on the due date. If there is no liability to pay tax there is no liability to pay interest. Section 11AB of the Act is attracted only on delayed paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Swift Laboratories in a manner or to the extent some other Court would have chosen to do. Thus, we find that the said judgment of the Honble Karnataka High Court cannot be held to be per incuriam even from a liberal stand point. 8. Coming to the judgment of the CESTAT, Mumbai in case of M/s. Balmer Lawrie (supra), it is seen that the distinction is sought to be made on the ground that the facts are different. The Hon ble CESTAT is Para 5.2 inter alia states as under : The reliance placed by the appellant on the decision of the Honble Karnataka High Court in the case of Bill Forge Pvt. Ltd. (supra) and the other decisions will not apply to the facts of the present case. In the case of Bill Forge Pvt. Ltd. (supra) appellant there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e differences in facts pointed out by the Hon ble CESTAT Mumbai in case of M/s. Balmer Lawrie (supra) do not have any such implication. 9. The Hon ble Karnataka High Court in the case of M/s. Bill Forge Pvt. Ltd. (supra) after taking due note of the judgment of Hon ble Supreme Court in the case of Indo-Swift Laboratories Ltd. (supra) concluded in Para 21 as under :- 21. Interest is compensatory in character, and is imposed on an assessee, who has withheld payment of any tax, as and when it is due and payable. The levy of interest is on the actual amount which is withheld and the extent of delay in paying tax on the due date. If there is no liability to pay tax, there is no liability to pay interest. Section 11AB of the Act is att ..... X X X X Extracts X X X X X X X X Extracts X X X X
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