TMI Blog2018 (5) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... redit but they on their own reversed it and declared in their ST-3 return, in that case even the SCN for demand under Section 73(1) should not have been issued - there is no question of penal provision. Appeal allowed - decided in favor of appellant. - Appeal No. ST/394/12 - Order No. A/86226/2018 - Dated:- 26-4-2018 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri S.S. Gupta, Chartered Accountant for Appellant Shri Rishi Goyal, Additional Commissioner (A.R.) for Respondent ORDER Per: Ramesh Nair: The facts of the case are that the appellant have reversed the CENVAT credit on 30.09.2008 on their own in respect of some input services as per the advice of their Statutory Auditor. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of interest and penalty. As regard interest, he submits that the appellant had not utilised the CENVAT credit which was subsequently reversed on their own therefore the interest is not chargeable on the said CENVAT credit. He further submits that since the appellant had already paid the CENVAT amount on their own ascertainment and declared in their monthly ST-3 return, there is no amount due for which the demand can be issued under Section 73. He submits that the demand under Section 73 can be raised only when any Service Tax has not been paid or levied, in the present case, the appellant paid suo-moto amount, there is no case of non-levy or non-payment of Service Tax, hence the provisions of Section 73(1) cannot be invoked. He submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposition of penalty could have been confirmed. He placed reliance on the following judgments:- (i) Bill Forge Pvt. Ltd. 2012 (26) STR 204 (Kar.) (ii) Strategic Engineering (P) Ltd. 2014 (310) ELT 509 (Mad.) (iii) GL V India Pvt. Ltd. 2015 (321) ELT 611 (Bom.) (iv) J.K. Tyres Industries Ltd. 2016 (340) ELT 193 (Tri.-LB) (v) Shyam Sunder U. Nichani 1985 (22) ELT 751 (Karnataka) (vi) Indian Tobacco Association - 2005 (187) ELT 162 (S.C.) (vii) Multiservice Rolls Ltd. 2007 - (215) ELT 119 (Tri.-Kol.) (viii) Reliance Industries Ltd. - 2006 (206) ELT 250 (Tri.-Mum) (ix) Gupta Steel - 2006 (205) ELT 24 (Guj.) (x) Cosmic Dye Chemical Vs. Collector of Central Excise, Bombay - 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aracter of wrongly availed does not change, therefore extended period is invokable for demanding interest. He submits that merely because the appellant have suo-moto reversed the credit the malafide intention is proved, hence the longer period of demand of interest was rightly invoked. He further submits that limitation shall not apply in the case for demand of interest for reason that even if the show-cause notice need not to be issued for the interest is payable on amount of availed credit. He placed reliance on the following judgments:- (i) Commissioner of Central Excise, Bangalore-II Vs. Alsthom Instrument Transformers 2015 (322) ELT 297 (Kar.) (ii) Commissioner of Central Excise, Chennai-III Vs. Supreme Industries Ltd. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of CENVAT credit. Accordingly, we are of the considered view that the demand of interest is hit by limitation, therefore the same is not sustainable being time bar. As regard the penalty, we find that though the appellant have availed the credit but they on their own reversed it and declared in their ST-3 return, in that case even the show-cause notice for demand under Section 73(1) should not have been issued, if that be so there is no question of invoking the penal provision. Accordingly, the penalty of the equal amount imposed by the lower authorities is not sustainable, hence the same is set aside. As per our above discussion the demand of interest and penalty are set aside, the amount of CENVAT credit reversed by the appellant stand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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