TMI Blog2018 (8) TMI 1975X X X X Extracts X X X X X X X X Extracts X X X X ..... cknowledged by the said letter dt. 1.03.2013 that the purported short paid duty was only ₹ 64,972 (incl. of cess), it was not open for them to thereafter allege short payment of duty of another ₹ 3,34,458/- by a subsequent Show Cause Notice issued to the appellant. Notably, the Assistant Commissioner had even observed in the said adjudication order that the payment of ₹ 66,000/- effected by the appellant towards the purported short-paid amount of ₹ 64,972/- was not part of the subject matter of the present dispute. As a result of the actions of the Department, the appellant has ended up paying ₹ 3,67,458/- through PLA and reversing another ₹ 33,000 in its credit register. A total of ₹ 4,00, 458/- has been appropriated by the Department against a dispute that concerned wrongly availed credit of only ₹ 3,34,458/-. Evidently, by seeking to recover ₹ 3,34,458/- by the said adjudication order, the Department is attempting to recover duty of ₹ 64,972/- twice, and also recover an additional duty of ₹ 2,69,486/- though credit to such extent was not utilized by the appellant as aforesaid. Further, since it is the trite law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he demand of Cenvat Credit totaling ₹ 3,34,458/- along with interest of ₹ 43,828/-. The Adjudicating Authority appropriated the demand and interest as paid by the appellants. However, he imposed a penalty of ₹ 1,67,229/- under Rule 15 (2) of CCR, 2004 read with Section 11 AC(b) of the Central Excise Act, 1944. On appeal, the Ld. Commissioner (Appeals) upheld the Adjudication Order and rejected the appeal filed by the appellant assessee. Hence, the present appeal before the Tribunal. 3. The Ld. Advocate appearing on behalf of the appellant contends that there is no one to one co-relation between the credit taken against inputs/input services to the finish goods cleared on payment of duty. Hence, there can be no utilization of the disputed credit if there was sufficient/surplus undisputed credit balance left even after meeting the duty requirements of the said period. He further contends that in terms of Rule 14 of the Cenvat Credit Rules, 2004, which pursuant to its amendment by Notification No. 18/2012 dt. 17/03/2012, requires as a condition precedent, to any recovery thereunder, that the disputed credit be wrongly availed and utilized. In the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,458/- by the said adjudication order, the Department is attempting to recover duty of ₹ 64,972/- twice, and also recover an additional duty of ₹ 2,69,486/- though credit to such extent was not utilized by the appellant as aforesaid. The breakup of the stated duty demand is provided hereunder:- i.e ₹ 3,34,458/-=₹ 64,972/- (being duty already recovered once before against letter dt. 1.03.2013 and treated as part of separate proceedings under Rule 8 (3A) CER, 02 by Asst. Commissioner)= ₹ 2,69,486/- being the balance demand for which no proof of utilization or short payment of duty has been supplied by the concerned authorities to date 7. Further, since it is the trite law that there is no one to one correlation between the credit taken against inputs/input services to the finished goods cleared on payment of duty by the concerned assessee, there can be no utilization of the disputed credit if there was sufficient/surplus undisputed credit balance left even after meeting the duty requirements for the said period. Though such contention was placed before the Assistant Commissioner and the Commissioner (Appeals), no finding has been made in regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for which Ind Swift (supra) may have been relevant, would in any event, fall outside the normal period of limitation. 9. It is my considered view that even for the month of march, 2012, there can be no basis for recovering interest on the wrongly availed credit. Following the decision of the Karnataka High Court in CCE, Bangalore v. Bill Forge (P) Ltd., 2012 (279) ELT 209 (Kar), which sought to distinguish Ind Swift (Supra) on facts, it made further apparent that where there is no short payment of duty resulting from any utilization of credit, there cannot be any basis for recovering interest merely on the wrongly availed credit, as in the present case. The findings in Bill Forge (Supra) are also consistent with the decision of this Hon ble Tribunal in SRF Limited, v. CCE, Chennai, 2007 (220) ELT 201(T), as recently approved by the Apex Court in 2016 (331) ELT A 138 (SC), whereby the doctrine of revenue neutrality has been applied to the Cenvat Credit Rules, 2004. Such principle is consistent with earlier Apex Corut 3- member constitutional bench decisions in CCE v. Narmada Chematur Pharmaceuticals Ltd, 2005 (179) ELT 276 (SC) and International Auto Limited v. CCE, Bihar, 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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