TMI Blog2018 (7) TMI 1939X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 - Dated:- 11-7-2018 - SHRI P. K. CHOUDHARY, MEMBER (JUDICIAL) AND SHRI BIJAY KUMAR, MEMBER (TECHNICAL) Mr. Arvind Baheti, C. A. for the Appellant (s) Shri H. S. Abedin, A.C. (AR) for the Respondent(s) ORDER Per Bench: The assessee is in Appeal against Order-in-Original No. 31/Commissioner/CE/Haldia/Adjn/2009 dated 07.10.2009 on the limited point of confirmation of interest liability amounting to ₹ 10,17,752/- under Rule 14 read with Section 11AB of the Central Excise Act. 2. The brief facts of the case are that the Appellant had inadvertently taken 100% credit of excise duty and education cess on capital goods received during the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya Ispat Nigam Ltd. Vs. CCE, CU ST, Vishakapatnam (2018-TIOL-2014- CESTAT-HYD). 4. The Ld. D. R. has invited our attention to the decision of the Hon ble Supreme Court in the case of Union of India Vs. Ind-Swift Laboratories reported in 2012 (25) STR 184 (S.C. to contend that interest is applicable as soon as the irregular credit is taken even if the same is not utilized before reversal. 5. Heard both sides and perused the appeal records. 6. We find that the reversal of credit suo motto prior to utilization is undisputed in the present case as forthcoming from para 2.6 and para 2.7 of the impugned Order-in-Original dated 07.10.2009. 7. We find that the Larger Bench of the Tribunal in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resulted in short levy and by simple filing returns by itself will not rescue the appellants from the mischief of suppression. 5. We find that the appellants had taken Cenvat credit on the basis of invoices raised in the name of their Head Office. The said Cenvat Credit has been taken by one of their manufacturing unit. There is no allegation of double availment of the said Cenvat Credit by any other unit. It is also observed that the appellants had reversed the Cenvat Credit on being pointed out by the audit. The appellants have not seriously contested the necessity or correctness of reversal of the Cenvat Credit before the lower authorities. However, they are seriously contesting the levy of interest and penalty. On the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had reversed the credit as soon as it was pointed out that they had wrongly availed the same, and they had not utilised the Cenvat Credit so availed till the time of reversal of the same. Therefore, the decision of Hon ble Jurisdictional High Court, relying upon the decision of the Hon ble Supreme Court on the very same issue is applicable in this case. We, therefore, hold that no interest is payable in the present case. On the issue of penalty under Section 11AC, it is seen that the same is not leviable as there were no intention to evade duty, as is evident from the facts of the case. 7. In the light of the above analysis, we set aside the demand of interest under the provisions of Rule 14 of Cenvat Credit Rules 2004, and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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