TMI Blog2019 (2) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee, no question of any interest liability at all arises. Hon’ble Apex Court in the case of Commissioner, Excise, Mumbai vs. Bombay Dyeing and Manufacturing Co. Ltd. [2007 (8) TMI 2 - SUPREME COURT] has held that where the entry has been reversed before utilization thereof, it amounts to not taking of the credit. Hence, the question of payment of interest does not at all arise. Time Limitation - Held that:- The Department was entitled to invoke the proviso thereof to have the extended period of limitation, but only in the case where there is any apparent act on the part of the appellant to evade the payment of duty/interest - But present is the case of voluntary reversal of the cenvat credit, that too, before utilization the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch, 2017. Being aggrieved, an appeal was preferred. Commissioner (Appeals) vide Order-in Appeal No.249 dated 31st May, 2018 has rejected the appeal. Being aggrieved of the said order, the present appeal has been filed. 2. I have heard Mr. Naresh Piplani, the representative of the appellant and Ms.Tamanna Alam, ld. A.R. for the Department. 3. It is submitted on behalf of the appellant that they initially availed the impugned cenvat credit wrongly. However, on their own they discovered the mistake on their part and reversed the said amount on 15th February, 2018 that is even prior the audit of their records was conducted by the Department. It is impressed upon that in the given circumstances no show cause notice was liable to be issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, 2009 as is also apparent from the extract of form RG 23 A part 2 as is attached on the record. It is otherwise also acknowledged by the adjudicating authority below. Apparently and admittedly the audit of appellants record was conducted by the Department on 21st February, 2009. There remains no doubt to hold that the wrongly availed cenvat credit was reversed by the appellant even prior to the audit of his records was conducted. Hence, the findings of the adjudicating authority below that the reversal was not voluntary has no legs to stand upon. 5.1 The only controversy which now remains to be adjudicated is as to whether in the given circumstances, the appellant was liable to pay the interest as has also been confirmed by the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounts to not taking of the credit. Hence, the question of payment of interest does not at all arise. Seen from entire above discussion, it is clear that confirmation of the demand of interest has no legal sustainability. Order under challenge to this extent is hereby set aside and also to the extent of confirming the recovery/appropriation of the amount of Cenvat Credit already reversed by the appellant. 7. Finally coming to the aspect of limitation, as raised by the appellant, I observe that the period of demand is 2008-09. Audit was conducted on 21st February, 2009. The show cause notice is dated 27th April, 2012. Apparently, the same is beyond the normal period of limitation as provided under Section 73 of Central Excise Act, 1944. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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