TMI Blog2016 (4) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... t is, 30th of June, till the date of payment, where the amount short paid is not paid within the said due date. The appellant is entitled to the benefit of Rule 6(3)(ii) read with clause (3A) of the CCR 2004 - So far the penalty is concerned, the issue being wholly interpretational, it is held that there is no suppression of facts on the part of the appellant and accordingly, penalties imposed under all Sections, are deleted. Appeal allowed by way of remand for the verification of the amount to be reversed along with interest. - E/50744/15 - Final Order No. 70347/2017 - Dated:- 5-4-2016 - Mr. Anil Choudhary, Member (Judicial) Shri Rajesh Chibber, Adv. for the Appellant (s) Shri A.K. Goswami, Addl. Commr. (A.R.) for the Respondent ORDER Per Mr. Anil Choudhary: The appellants, M/s APL Apollo Tubes Ltd., is in appeal against the Order-in-Appeal No.NOI/EXCUS/000/APPL/258/2014-15 dated 28/11/2014 passed by the Commissioner (Appeals), Central Excise, Customs Service Tax, Noida. 2. Brief facts of the case are that the appellant is a manufacturer of excisable goods namely Steel Tubes Pipes and are also availing Cenvat credit for inputs and input se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Sub-rule (3A) have not been made in time and the same is not available to the appellant and as such the appellant is required to pay a fixed percentage of their exempt turnover (removal of goods as such) and accordingly, pay an amount according to the fixed percentage in terms of rule 6(3)(i) of the CCR, 2004. Accordingly, it was proposed to recover an amount of ₹ 19,36,067/- invoking the extended period under Section 11 A read with rule 14 of CCR with the proposal to appropriate the amount of ₹ 4,33,808/- already paid by way of debit along with interest and further penalty was proposed under Rule 15 read Section 11 AC. The SCN was adjudicated on contest and the proposed demand was confirmed along with interest and equal amount of penalty under Rule 15 of CCR read with Section 11 AC of the Act. However, the amount of ₹ 4,33,808 was appropriated, as proposed. 3. Being aggrieved the appellant preferred appeal before Id e Commissioner (Appeals) who was pleased to dismiss the appeal and confirmed ,the order-in-original observing that the appellant have not followed the provisions and not exercised the option in time and accordingly the contention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has to be availed. Revenue could not insist the appellant to avail a particular option. In the present case the appellant have admittedly availed option as provided under Rule 6(3)(ii) and paid an amount as required under sub-rule (3A) of Rule 6. As regard the compliance of the procedure and conditions as laid down for availing option as provided under sub-rule (3)(ii), we find that foremost condition is that the appellant is required to pay an amount as per the formula provided under sub-rule (3A) on monthly basis. However, we find that as per the provision, payment on monthly basis is provisional basis, therefore it is not mandatory that whole amount or part of the amount was required to be paid on every month. The appellant though belatedly calculated the amount required to be paid in terms provided under sub-rule (3A) of Rule 6, therefore to fulfill the condition, assessee should pay the said amount, which has been complied by the appellant. 5.2 As regard the delay in payment, if any, the appellant have discharged the interest liability on such delay. Regarding the compliance as provided under Clause (a) of sub-rule (3A) of Rule 6 the appellant while exercising thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to avail a particular option. In the present case admittedly it is appellant who have on their own opted for option provided under Rule 6(3)(ii). The meaning of the option as argued by the Ld. Sr. Counsel is that option of right of choosing, something that may be or is chosen, choice, the act of choosing . From the said meaning of the term option , it is clear that it is the appellant who have liberty to decide which option to be exercised and not the Revenue to decide the same. 5.4 We find that the appellant admittedly paid an amount of ₹ 4,06,785/- plus interest, this is not under dispute. Therefore in our view, the appellant have complied with the condition prescribed under Rule 6(3)(ii) read with sub-rule (3A) of Rule 6 of Cenvat Credit Rules, therefore demand of huge amount of ₹ 24,71,93,529/- of the total value of the vehicle amounting to. ₹ 494,38,70,577/- sold in the market cannot be demanded. We are also of the view that Rule 6 of the Cenvat Credit Rules is not enacted to extract illegal amount from the assessee. The main objective of the Rule 6 is to ensure that the assessee should not avail the Cenvat Credit in respect of input or input servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Further, the issue is wholly interpretational and as such extended period of limitation is not available and accordingly for the period in question the demand for April '11 to September' 11 is clearly time barred. The Id. Counsel further states that they have reversed the Cenvat credit under the formula given in Rule 6(3A) and further no interest is payable, as is evident from the closing balance of Cenvat credit for each month, which shows that the appellant had sufficient balance of unutilized Cenvat credit and have not utilized the credit in question which have been reversed on 29/03/12. The Id. Counsel also relies on the Division Bench ruling of this Tribunal in the case of Simbhaoli sugar Mills Ltd. final order number E/70080/2016 (DB) dated 23/02/16 wherein revenue raised the demand of interest on Cenvat credit reversed which was wrongly taken. Following the ruling of Karnataka High Court in the case of Bill Forge (private) Ltd. this Tribunal held before utilization of such credit, the entry has been reversed, it amounts to not taking credit. It is further held that interest is compensatory in character and is imposed on an assessee who has withheld payment of ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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