TMI Blog2016 (11) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... or wrongful availment of Cenvat Credit which has been reversed before utilization by the appellant - the demand of interest in this case is not proper and justified. Levy of penalty - reliance placed in the decision of CCE Madurai Vs. M/s Strategic Engineering (P) Ltd. [2014 (11) TMI 89 - MADRAS HIGH COURT] where it was held that mere taken of CENVAT credit facilities is not at all sufficient for claiming of interest as well as penalty - the appellants are not liable to penalty. Appeal allowed - decided in favor of appellant. - Appeal No. E/297/12-Mum - Order No.A/93027/16/SMB - Dated:- 30-9-2016 - Mr. Devender Singh, Member (Technical) Shri J.N. Somaiya, Advocate for the Appellant Shri S.V. Nair, Superintendent (A.R.) fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d production till the time of reversal of the cenvat credit and had not utilized the cenvat credit any time before its reversal. For this, he relied on the statement of Shri J. Venkatrao, General Manger of the appellant (Questions 3 and 4), to substantiate that production was not started. He further submits that since there was no production and no clearance prior to the reversal of the cenvat credit, there is no loss to the Revenue as the cenvat credit had not been utilized at any stage. He has tried to distinguish the judgment of the Hon ble Supreme Court in the case of Indo-Swift laboratories Ltd. Vs. CCE as reported in 2015 (12) TMI-1050-CESTAT and also emphasized the point that in the case of Indo-Swift Laboratories Ltd. (supra), the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arted and hence there was no clearance from the factory. This fact has not been contested ted by the Ld. AR. As there was no clearance from the factory, there was no question of utilization of the cenvat credit availed by the party. On these facts, the case of GTL Infrastructure Ltd. Vs. CCE (supra) cited by the Ld. Advocate, is directly applicable. In the said judgment, the Tribunal held as below: The case in hand although the appellant has taken the Cenvat Credit, the same has been reversed on pointing out therefore the facts of this case are similar to the case of Bill Forge Pvt. Ltd. (supra) and distinguishable from the facts of the case of Ind-Swift Laboratories Ltd. (supra), as in the case of Ind-Swift Laboratories Ltd. (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable and therefore, the assessee is bound to pay interest as well as penalty. The Honourable Apex court has dealt with rule 14 of the said Rules and subsequently on the basis of facts available in that case has given a finding to the effect that assessee therein is liable to pay interest as well as penalty. 9. The learned cousel appearing for the respondent has contended that the decision reported in 2012 (25) S.T.R. 184 (SC) (Union of India) Vs. Ind-Swift laboratories Limited) 2011-TIOL-21-SC-CX has been elaborately dealt with in the decision reported in 2012 (26) S.T.R. 204(Karnataka) (Commissioner of Central Excise S.T. Bangalore Vs. Bill forge Private Limited)-2011-TIOL-799-HC-KAR-CX. 10. In fact, this Court has perus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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