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2017 (5) TMI 814 - CESTAT KOLKATA

2017 (5) TMI 814 - CESTAT KOLKATA - TMI - Liability of interest - CENVAT credit availed wrongly was reversed - Held that: - In the present appeals there is no clear finding of non-utilisation of the credit availed during the passage of time - There is no clarity on the facts of the case in the present appeals and therefore, the said appeals cannot be decided merely on the basis of the case laws as cited by both the sides - the appeals are allowed by way of remand to the Adjudicating Authority to .....

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p together for disposal. 2. Heard both sides and perused the appeal records. 3. The ld. Advocates/Counsels appearing on behalf of the appellants submitted that the appellants availed the credit wrongly and thereafter reversed the credit. Hence, the demand of interest is not sustainable. It is contended that the Tribunal, the High Court and the Supreme Court in various decisions held that the credit taken, but not utilized, the demand of interest cannot be sustained. 4. The ld. Counsels submitted .....

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(Tri.-LB)][2016 TIOL 1781 CESTAT, Bangalore (LB)] is contrary to the decision of the Hon ble Supreme Court. He also referred to Article 141 of the Constitution of India, in this context. 5. Before going to the legal question, the facts of the case may be examined as under: (a) Appeal No.E/82/2012, M/s. Indessa Gases Pvt. Ltd., the Commissioner (Appeals) observed that according to the decision of the Ind-Swift Laboratories (supra), once Cenvat Credit is taken wrongly, consequences are same whethe .....

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ks the intention of the appellant. The appellant had not debited the entire amount on their own will. (b) Appeal No.E/266/2011, M/s. Amrit Exports Pvt. Ltd. In that case, the appellant relied upon the decision of the Tribunal in the case of M/s. Delphi TVS Diesel Systems Ltd. vs. CCE, Chennai [2010-TIOL-1635-CESTAT-MAD]. The Commissioner (Appeals) observed that the Board s Circular dated 03.09.2009 was not brought to the notice of the Hon ble Bench of the Tribunal, and the said decision of the T .....

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