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2016 (12) TMI 582

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..... it was lying in the account of the assessee - appeal disposed off - decided against assessee. - Appeal No. E/657/658/2010-EX [DB] - Final Order No. 55594-55595 /2016 - Dated:- 25-11-2016 - Mr. Dr. Satish Chandra, President And Mr. Ashok K. Arya, Member (Technical) Ms. Rinky Arora advocate for the appellant Sh. Yogesh Agarwal, AR for the respondent ORDER Per Ashok K. Arya 1. These two appeals have been filed by M/s Shree Cement Ltd. against the Common order-in-original dated 15.12.2009 passed by Commissioner Central Excise Jaipur-II. The matter mainly relates to the chargeability of the interest on wrong availment of Cenvat Credit amounting to ₹ 35,14,493/-. 2. The appellant has been represented by ld. Advo .....

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..... ion of the same. The issue now is whether there is liability of interest for the period when the said credit was lying in the Cenvat credit account of the appellant?. The appellant has cited the decision of Hon ble Karnataka High Court in case of Bill Forge Pvt. Ltd. (supra). However we find that there is direct ruling on this issue by the Hon ble Supreme Court in the case of Union of India vs. Ind-Swift Laboratories Ltd.- 2011 (265) E.L.T. 3 (S.C.), where it has been held that where Cenvat Credit is taken OR utilized wrongly, the same along with the interest is to be recovered from manufacturer or the provider of the output service. The Hon ble Supreme Court in the said case specifically lays down that even when the Cenvat Credit has not .....

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..... would be recovered from the manufacturer or the provider of the output service. The issue is as to whether the aforesaid word OR appearing in Rule 14, twice, could be read as AND by way of reading it down as has been done by the High Court. If the aforesaid provision is read as a whole we find no reason to read the word OR in between the expressions taken or utilized wrongly or has been erroneously refunded as the word AND . On the happening of any of the three aforesaid circumstances such credit becomes recoverable along with interest. 6.1. The case laws cited by the appellant cannot make them entitled to the interest relief as the ratio of Hon ble Supreme Court decision in case of Ind-Swift Laboratories Ltd. is very clear; Hon ble Su .....

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