TMI Blog2019 (4) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... hen audit has taken place. It only states reversal was on 15- 2-2008. Show Cause Notice was issued 08/10/2012 - the department has not made any case for invoking extended period of time - SCN is barred by time limitation. As the issue is settled on limitation, there is no reason to go into merits of the issue - appeal is allowed on limitation. - APPEAL NO.ST/88565/2014 - A/88337/2018 - Dated:- 20-12-2018 - Dr. D.M. Misra, Member (Judicial) And Shri P Anjani Kumar, Member (Technical) Shri S.S. Gupta, C.A. with Shri Manoj Chauhan, C.A. for Appellant Shri Suresh, Dy. Commissioner (A.R) for respondent ORDER Per: Shri P Anjani Kumar, Member (Technical) 1. This appeal is directed against the order in original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the by availing the ineligible CENVAT credit the Appellant did not default in the payment of the service tax liability. 2.1. The Learned Counsel submitted that in one of the landmark judgments, Hon ble Supreme Court, in the case of Pratibha Processors Vs UOI 1996 (88) ELT 12 (SC) has explained the reason for charging of interest and observed as follows: 13. In fiscal Statutes, the import of the words tax , interest , penalty , etc are well known. They are different concepts. Tax is the amount payable as a result of the charging provision. It is a compulsory exaction of money by a public authority for public purposes, the payment of which is enforce by law. Penalty is ordinarily levied on an assessee for some contumacious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substituting the word or for the word and . It was clarified by CBEC, vide Circular No. DOF. No.334/ 3/2012-TRU dated 16.3.2012, that Rule 14 is being amended to substitute the word or with and so that interest is not payable on credit wrongly taken unless the same is utilized . Therefore, it is clear that the intention of the Legislature was to charge interest only when the credit availed was utilized. The same position would apply for the period prior to the amendment of Rule 14 of the Rules also in view of the ratio of the decision of the Hon ble Supreme Court in the case of Johnson and Johnson Ltd. Vs. Commissioner (1997 (92) ELT 23 (SC)) wherein it has been held that in interpreting an earlier notification, when the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal are not having substance and altogether the present Civil Miscellaneous Appeal deserves to be dismissed. 2.4. The appellants further relied upon the following. (i). J. K. Tyre industries Ltd. (2016 (340) E.L.T. 193 (Tri-LB) (ii). Atul Limited (2017 (4) TMI 217 CESTATE AHMEDABAD) (iii). Nagpur Nagrik Sahakari Bank Ltd (2018 (11) TMI 1524 CESTAT MUMBAI) 2.5. They submitted that reversal of credit without utilizing is not barred, extended period cannot be invoked in view of the following and extended period cannot be invoked if Penalty under Section 78 is dropped. (i). Amby Valley Ltd. (2018 (5) TMI 610-CESTAT MUMBAI) (ii). Flextronics Technologies (India) Pvt LTD. (2015 (323) E.L.T. 273 (Kar.) (iii). Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (T) (g) Sports Leisure Apparel Ltd. CCE, Noida 2005 (180) ELT 490 (h) Aqua mall Water Solutions Ltd. 2003 (153) ELT 428. (i) Blue Cross Laboratories Ltd. vide order No.A/1529/CIV/ SMB/2007. 2.8. The Learned Authorised Representative reiterated the findings of the OIO and relied upon the following cases: (i). CCE Thane II Vs Standard Greases 2017(350) ELT123 (Tri- Mum) (ii). CCE Bangalore II Vs Alsthom Instrument Transformers 2015 (322) ELT 297 (Kar) (iii). CCE Chennai III Vs Supreme Industries Ltd. 2014 (303) ELT 513 (Mad.) (iv). Commissioner of Trade Tax Lucknow Vs Kanhai Ram Thekedar2005 (185) ELT 3 (SC) (v). CCE Pune Vs SKR India Ltd 2009 (239) ELT 385 (SC) (vi). CCE Pune I Vs SKF India Ltd 2015 (321) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, could be read as AND by way of reading it down as has been done by the High Court. If the aforesaid provision is read as a whole we find no reason to read the word OR in between the expressions taken or utilized wrongly or has been erroneously refunded as the word AND . On the happening of any of the three aforesaid circumstances such credit becomes recoverable along with interest (Para 17) 4.1 We find that the Appellants have contested the impugned order both on the grounds of merit as well as limitation. We take up the issue of limitation to begin with : The appellants submitted that the SCN is barred by limitation. The matter pertains to April 2007-January 2008. The Show Cause Notice accepts the fact that the rever ..... X X X X Extracts X X X X X X X X Extracts X X X X
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