TMI Blog2018 (7) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... t to avail the credit and found that they were eligible to avail the credit and therefore he set aside the demand of interest and imposition of penalty. In view of the decision of the Karnataka High Court in the case of Ecof Industries Pvt. Ltd.[2011 (2) TMI 1130 - KARNATAKA HIGH COURT], the demand of interest and imposition of penalty will not arise if the credit availed by the assessee is in order. Appeal dismissed - decided against Revenue. - ST/317/2008-DB - 20801/2018 - Dated:- 1-6-2018 - MR. S.S GARG, JUDICIAL MEMBER And MR. P. ANJANI KUMAR, TECHNICAL MEMBER Shri Pakshirajan, Asst. Commissioner (AR) For the Appellant Shri Syedpeeran, Advocate For the Respondent ORDER Per: S.S GARG The present appeal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005 and December 2005, and reversed the said amount of credit taken under Entry Sl.No.165081, 165083, 165084 165089 all dt. 17/01/2007 and intimated the same to the Range Superintendent vide their letter dt. 19/01/2007, along with necessary details. It was further noted that the assessee only reversed the service tax credit wrongly availed but not paid the interest amount of ₹ 11,28,130/- due thereon. As per Rule 14 of CCR, 2004, where the CENVAT credit has been taken or utilized wrongly, the same along with interest shall have to be recovered from the manufacturer under the provisions of Section 11A and 11AB of Central Excise Act, 1944. 2.2. The Department issued a show-cause notice dt 10/01/2008 to demand interest amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Commissioner has not travelled beyond the show-cause notice since he has not adjudicated the issue on the eligibility of credit per se. However in order to demand interest in terms of Rule 14 of CCR, 2004 and imposition of penalty under Rule 15, it is material to test the eligibility/irregularity of credit in terms of Rule 7 of the CCR 2002. Since Rule 14 and 15 can be invoked only when credit availed is irregular. He further submitted that the Commissioner has examined that the respondents were eligible to avail credit and consequently set aside the demand of interest and imposition of penalty and therefore there is no infirmity in the impugned order. He further submitted that there is no condition of one-to-one correlation between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the Department and the same amounts to payment under protest, For this submission, he relied upon the following decisions:- i. Laxmi Board Paper Mills Ltd. CCE, Mumbai [2007(208) ELT 384 (Tri. Mum.)] ii. Star Coolers Condensers Pvt. Ltd. Vs. CCE, Nashik [2010(262) ELT 669 (Tri. Mum.)] 6 After considering the submissions of both sides and perusal of records and various judgments relied upon by the assessee, we find that the Commissioner has not travelled beyond the show-cause notice as alleged by the Revenue. Further we find that the Commissioner has examined the eligibility of the respondent to avail the credit and found that they were eligible to avail the credit and therefore he set aside the demand of interest and impo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
