TMI Blog2018 (11) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest is chargeable for the act of wrong availment of credit only when the assessee wrongly availed and utilized the cenvat credit - In the present case the credit of Education Cess and Secondary & Higher Education Cess was subsumed in the opening balance of March 2015. Since till the date of reversal, it was not utilized, therefore, the interest is not chargeable - interest demand set aside. Appeal allowed - decided in favor of appellant. - E/10686/2018-SM - Final Order No. _M/12538/2018 - Dated:- 2-11-2018 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) For Appellant: Shri Saurabh Dixit (Advocate) For Respondent: Shri J. Nagori (AR) ORDER Per: Ramesh Nair The brief facts of the case are that the appellant have s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that as regard the demand of balance of Education Cess and Secondary Higher Education Cess as on 28.02.2015, the appellant had admittedly reversed the same, therefore, no demand notice could have been issued. He submits that there is no suppression or the malafide intention on the part of the appellant for the reason that they had declared the balance of Education Cess and Secondary Higher Education Cess separately in their ER-1 Return in the month of February 2015 and the same was subsumed in the opening balance of cenvat and the same was declared in ER-1 Return of March 2015. The audit also pointed out the same from both of these returns, therefore, the fact of subsumed the Education Cess and Secondary Higher Education Cess, the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsumed in the opening balance of cenvat credit as on 01.03.2015 and whether the appellant is liable for penalty under Section 11AC. The facts is not under dispute that the appellant shown the closing balance of Education Cess and Secondary Higher Education Cess as on 28.02.2015 and declared in their ER-1 Return and the same amount was included/subsumed in the opening balance of basic cenvat credit as on 01.03.2015 and the same was declared in ER-1 Return for the month of March 2015, therefore, the facts was very much in the knowledge of the Revenue. Therefore, there is no suppression of fact on the part of the appellant, accordingly, the penalty imposed under Section 11AC is not imposable. As regard the demand of interest, I find that if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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