TMI Blog2018 (12) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... /09 - FO/A/76979/2018 - Dated:- 16-11-2018 - SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) And SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Shri A. Baheti, C.A. for the Appellant (s) Shri A. K. Biswas, Supdt. (A.R.) for the Revenue ORDER Per Bench : The present appeal is filed by the appellant against the Order-in- Original No.33/Commr./Bol./09 dated 04.02.2009 passed by the Commissioner of Central Excise, Bolpur. 2. The facts of the case in brief are that the appellant is engaged in the manufacture and sale of carbon black with its factory at Durgapur and Head Office located at Kolkata. The Head Office of the appellant is registered as an Input Service Distributor (ISD) for distributing the credit of service tax paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nical infractions, more so, when all the details were available in the annexure to the invoice. The ld.Consultant further submitted that cenvat credit of ₹ 1,58,00,485/- comprised in the twin ISD invoices stood reversed by the appellant suo motu even before the issuance of show-cause notice and without utilizing such credit except a part of Education Cess and Higher Education Cess, which was also paid by them subsequently from PLA on 05.08.2008. The ld.Consultant has also submitted a Certificate from the Chartered Accountant, which certifies that the Durgapur Unit i.e. the Appellant, had not utilized the input tax credit of ₹ 1,58,00,485/- for the purpose of payment of Excise duty of its finished goods any time during 2007 to 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the officers. He also submits that on the issue of interest, there are other decisions by the Hon ble High Court of Madras and also decision of the Hon ble Tribunal. He also counters the Citations made by the Learned Counsel. He submits the Apex Court s decision in Ind-Swift Laboratories Ltd (supra) is in the favour of Revenue stand. He also cited the decision of Hon ble Madras High Court in the case of CCE, Chennai v. Delphi TVS Diesel Systems Ltd - 2015 (322) E.L.T. 279 (Mad.) and decision of this Hon ble Tribunal in Force Motors Ltd v. CCE., Pune - 2015-TIOL-1833-CESTAT-Mum = 2015 (329) E.L.T. 543 (Tribunal). The learned Authorised Representative strongly argued that if the audit had not pointed out the wrong availment of cenvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth, in case where CENVAT credit has been wrongly taken or wrongly utilized, interest, is recoverable under Rule 14 of the Rules. However, in the light of the aforesaid decision of the Supreme Court, when the entry has been reversed before utilization, the same amounts to not taking credit. In the circumstances, where CENVAT credit is taken wrongly, but reversed before the same is utilized, it amounts to not taking credit. Accordingly, when no credit is taken, the provisions of Rule 14 of the Rules would not be attracted. The view adopted by the Tribunal as well as the authorities below is, therefore, in consonance with the view taken by the Supreme Court in the above referred decision. 6. We find that in this case the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
