TMI Blog2019 (8) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... t the amount was taken in the books of accounts in excess of what was available to the appellant. A bare reading of Rule 14 would clearly lead to a conclusion that Cenvat Credit after being utilised wrongly can only be recovered as per provision of section 11A, 11AA of the Excise Act and Section 73 and 75 of the Finance Act since the word and is bridged between taken and utilised . In the instance case credit is only shown in ST-3 return to have been taken but not utilised though it was wrong a credit taken as amount has been entered twice, which SCN also admits to be a mistake committed by the appellant. Appeal allowed. - Service Tax Appeal No. 87166 of 2018 - A/86336/2019 - Dated:- 2-8-2019 - DR. SUVENDU KUMAR PATI, MEM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el.) Honourable Delhi High Court, Magma HDI General Insurance Company Ltd. [2016] 71 taxmann.com 264 Honourable Calcutta high Court, Travelite (India) 2014 (35) S.T.R. 653 (Del.) Honourable Delhi High Court, concerning legality of Audit conducted by the departmental Officier under Rule 5A, submitted that there was no excess availment of credit as can be seen from the reconciliation statement submitted on 10-5-2016 to the department even before issue of Show Cause Notice on 13-5-2016 and going by ST-3 returns, it can clearly be ascertained that Cenvat Credit amount was wrongly reflected in the appellants account twice as manufacturer cum service provider and also as Input Service Distributor (ISD), but appellant had neither utilised the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the sides at length on the other day and perused the case record. Contention of the appellant was that it had made wrong entry of Cenvat Credit at two places namely at ISD column and at the manufacturers column. The finding of the Learned Commissioner (appeals) is that appellant was not registered as ISD. However, going by para 1 3 of the show cause notice as well as the order-in-original, both the observations of the Commissioner (appeals) appears to be erroneous. In para 1 of the show cause notice and order-in-original, it has been mentioned that the assesse is also registered as Input Service Distributor for distribution of credits to their manufacturing unit located at Ambernath, Mumbai and service unit located at Andheri, Mumbai. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s resulted in double availment of Cenvat credit in their ST 3 return. 6. This being the factual aspects, the legality of such demand is now required to be looked into. Allegation against the appellant is that it had availed Cenvat Crdit in excess of its availability to the appellant for which Rule 14 is violated, though no such wording is available in Rule 14 called availed . On the other hand, it uses terms like Cenvt Credit taken , utilised wrongly , erroneously refunded . Availment by its Dictionary meaning would mean to make use of something but the record reveals that the amount was taken in the books of accounts in excess of what was available to the appellant. Rule 14 of the Cenvat credit Rule 2004 during the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
