TMI Blog2017 (5) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty, in appellant’s own case [2010 (6) TMI 699 - CESTAT NEW DELHI], this Tribunal has held that it was not the case of the respondent that there was any case of fraud, wilful mis-statement, collusion or suppression of facts on the part of the appellants in utilizing the credit without complying with the requirement of Rule 6(2) of the said Rules, thus penalty cannot be levied - penalty set aside. Appeal allowed - decided in favor of appellant. - E/431/2008 - Final Order No. 60612/2017 - Dated:- 30-3-2017 - Mr. Ashok Jindal, Member (Judicial) Sh. Prakash Shah and Sh. Pawan Kumar, Advocates, for the Appellant(s) Sh. G.M. Sharma, AR for the Respondent(s) ORDER Per : Ashok Jindal The appellant is in appeal again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not imposable. Further, he submits that the liability of interest is also not sustainable against them in terms of decision of the Hon ble Apex Court in the case of Star India Pvt. Ltd. Vs. CCE, Mumbai Goa Reported in 2006 (1) STR 73 (S.C.) which has been followed by this Tribunal in the case of Pushti Refineries (P) Ltd. Vs. Commissioner of Central Excise, Customs Service Tax, Bangalore-I reported in 2014 (302) ELT 319 (Tri.- Bang.). 4. On the other hand, the Ld. AR reiterated the findings of the impugned order. 5. Heard both the sides and considered the submissions. 6. The Ld. Counsel for the appellants has not contested the liability of amount of 8% of the value of exempted goods and only contesting the payment of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of amendment to Finance Act with retrospective effect, retrospectivity is not permissible to create an offence retrospectively and further liability to payment of interest cannot be said to have been created with retrospective effect. In my opinion both these decisions apply to the facts of this case. As regards the decision in the case of SKF India Ltd. in that case Hon ble Supreme Court was not considering the consequences of retrospective amendment and therefore the decision of the Hon ble Supreme Court where the issue involved is same has to be preferred to the one where a general decision in principal has been taken. In any case the decision in the case of SKF India Ltd. was relevant to the cases where supplementary invoice has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 13(2) is satisfied, the question of imposition of penalty could not arise in case of wrongful availment or utilization of Cenvat credit. Certainly, non-maintenance of the separate accounts in relation to the inputs utilized for dutiable final products and those utilized for non-dutiable final products would amount to wrongful utilization of the Cenvat credit. However, unless the act is done with the intention to evade the payment of duty, question of imposition of penalty would not arise, except when fraud, wilful mis-statement, collusion or suppression of facts is established. It was not the case of the respondent that there was any case of fraud, wilful mis-statement, collusion or suppression of facts on the part of the appellants in u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 6(3)(b) of Cenvat Credit Rules is not duty but an amount, therefore, we find no merit in the appeal. The appeal is dismissed. The stay petition is also dismissed. Which have been affirmed by the Hon ble Punjab and Haryana High Court in the case of CCE, Ludhiana Vs. Sangrur Agro Ltd. (P H) (supra) wherein the Hon ble Punjab and Haryana High Court has observed as under:- 3 . The short question is whether the respondent is liable to pay penalty and interest on the excess amount claimed by it? The Commissioner (Appeals) as well as the Tribunal have held that provisions of Section 11AC of the Central Excise Act are inapplicable as they relate only to short payment of duty, whereas the present case relates to reversal of the exces ..... X X X X Extracts X X X X X X X X Extracts X X X X
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