TMI Blog2016 (2) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... more so in the light of decision of the Hon’ble Karnataka High Court’s decision in the case of CCE vs. Bill Forge [2011 (4) TMI 969 - KARNATAKA HIGH COURT] - provisions of Rule 14 of CENVAT Credit Rules, 2004 for recovery of interest on the subject CENVAT credit amount will not be attracted. - demand set aside - Decided in favor of assessee. - ST/966/2012-SM - Final Order No. 22133 / 2015 - Dated:- 2-12-2015 - SHRI ASHOK K. ARYA, TECHNICAL MEMBER For the Petitioner : Mr. N. Anand, Advocate For the Respondent : Mr. Mohammed Yousaf, Addl. Commissioner (AR) ORDER PER : ASHOK K. ARYA Both the parties have been heard in detail. 2. The issue concerns with initial excess payment of service tax by the appellant-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f service tax 2 08.09.2009 Letter of the department vide C. No.V/ST-TNT/308/2009 GLT-1 asking the appellant to furnish Cenvat statement showing the availment of credit. 3 21.10.2009 Letter of the appellant furnishing the details of the Cenvat along with the refund claim application. 4 10.11.2009 Letter of the department vide C. No.V/18/ST/308/2009 GLT.1 asking the appellant to reverse Cenvat credit for consideration of the refund claim. 5 13.11.2009 Letter of the appellant informing the department regarding reversal of Cenvat. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of law given in the Rule 14 of CENVAT Credit Rules, 2004 as existed during the relevant period are very clear that wherever CENVAT credit wrongly taken or utilized wrongly, the liability of recovery of the same along with interest is attracted and the provisions of law as mentioned therein i.e., provisions of Sections 73 and 75 of the Finance Act, would apply for effecting the said recoveries. The learned AR in support cites the Hon ble Supreme Court s judgment in the case of UOI vs. Ind-Swift Laboratories Ltd.: 2011 (265) E.L.T. 3 (S.C.). 5. There is no dispute about the facts on record. The appellant-assessee accepts that they have taken the CENVAT credit but they say that it was not wrong; however, the Revenue says that as per law t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rong calculation by the appellant. When the appellant had taken CENVAT credit for the said excess payment of service tax, it possibly may be called technically irregular CENVAT credit, but again strictly speaking it is a technical flaw, which had occurred mainly on account of wrong calculation. It is on record that the said CENVAT credit was based on actual payment of service tax, though in excess, and on no occasion the appellant-assessee utilized the same as throughout the relevant period, the appellant-assessee had the balance amount in their CENVAT Account more than the CENVAT credit amount in question. Considering the facts of the case quoted by the Revenue, I am of the considered view that strictly speaking this decision of the Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit is utilized, thereby it is adjusted or set off against the duty payable and a debit entry is made in the register. Therefore, this is a procedure whereby the manufacturers can utilise the credit to make payment of duty to discharge his liability. Before utilization of such credit, the entry has been reversed, it amounts to not taking credit. Reversal of cenvat credit amounts to non-taking of credit on the inputs. (emphasis supplied) 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 21.9.2009 furnished the details of CENVAT credit along with their refund claim application. The department asked the appellant vide letter dated 10.11.2009 to reverse the CENVAT credit for consideration of the refund claim. The appellant informed the department vide letter dated 13.11.2009 regarding reversal of CENVAT credit and on 15.1.2010 the department (Assistant Commissioner, LTU) sanctioned the refund to the appellant. Thereafter department issued show-cause notice dated 5.10.2010 starting the proceedings for recovery of interest invoking Rule 14 of CENVAT Credit Rules, 2004 and present appeal is in consequence to the Order-in-Original passed by the Commissioner against the said show-cause notice. 5.6.1 All the above facts, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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