TMI Blog2017 (1) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay interest would not arise. The liability to pay interest would arise only when the duty is not paid on the due date. If duty is not payable, the liability to pay interest would not arise - demand of interest set aside - appeal allowed - decided in favor of appellant. - ST/28521/2013-SM, ST/28522/2013-SM - 21514-21515 / 2016 - Dated:- 28-12-2016 - Shri S. S. Garg, Judicial Member Shri V. Raghuraman and Shri. R. Murthy, Advocates For the Appellant Shri Parashiva Murthy, AR For the Respondent ORDER Per S. S. Garg The appellants have filed these two appeals against the two impugned orders dated 10.09.2013 whereby the Commissioner rejected the appeals of the appellant but set aside the penalty under Rule 15. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 100% Credit availed on SIM cards as inputs instead of 50% during the year 2006-07 1,01,522/- Total 27,04,821/- (b) Penalty under Rule 15 of Cenvat Credit Rules, 2004 should not be imposed upon them for wrong availment of cenvat credit as mentioned above. The appellant filed the reply to the show-cause notice contending that the item cannot be termed as capital goods merely because SIM cards are classified under Chapter 85. As the SIM cards are used for providing Telecommunication Services, hence it is inputs and not capital goods. However, adjudicating authority passed Order-in-Original dated 17.12.2008 wherein inter alia the demand of intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aggrieved by both the orders passed in appeal by the Commissioner, appellants have filed these two appeals before this Tribunal. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned orders are not sustainable in law as the same are opposed to the clear principles of law laid down in several decided cases and are liable to be set aside. He further submitted that the demand of interest on the alleged credit availed on SIM card is wrong. He further submitted that SIM card fall in the definition of input and the adjudicating authority has also agreed that by virtue of their utility SIM card can be considered as input but the adjudicating authority has held that it is a capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. This fact has even been admitted by the impugned order that the assessee has huge cenvat credit lying in their books. The learned counsel placed reliance upon the decision in the case of CCE Vs. Bill Forge Pvt. Ltd. 2011-TIOL-799-HC-KAR-CX wherein the decision of the Hon ble Supreme Court in the case of Ind-Swift Laboratories Ltd. has been specifically considered and distinguished in similar factual position and it has been clearly and categorically held that the interest cannot be demanded. This decision has been followed by so many subsequent decisions of the High Courts and the Tribunal. He also submitted that the principles laid down by the Hon ble High Court of Karnataka are fully applicable to the facts of the case involved her ..... X X X X Extracts X X X X X X X X Extracts X X X X
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