TMI Blog2023 (10) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant has filed the refund claim after one year after the Hon ble CESTAT in CYIENT DLM PVT. LTD. VERSUS COMMISSIONER OF CENTRAL TAX, MYSURU COMMISSIONERATE [ 2019 (3) TMI 176 - CESTAT BANGALORE] , the relevant date for filing the refund in such cases is as per Section 11B(5) Explanation (B) (ec) of Central Excise Act, 1944, which mentions that the relevant date for filing the refund is the date of order of the Appellate Tribunal, however in this case the refund claim has been filed after one year of the Tribunal s order, hence it was held to be time-barred. Adjustment of the proportionate penalty imposed and adjusted by the adjudicating authority - HELD THAT:- The Commissioner (Appeals) has held that the Hon ble Tribunal s has not passed any order as regards the penalty on the ineligible cenvat credit availed by the appellant. The appellant submits that the Hon ble Tribunal has followed the decision in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX LARGE TAXPAYER UNIT, BANGALORE VERSUS M/S BILL FORGE PVT LTD, BANGALORE [ 2011 (4) TMI 969 - KARNATAKA HIGH COURT] of the Hon ble High Court of Karnataka and interest only has been set aside, hence the Hon ble Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nine only) on the irregularly availed cenvat credit after 6(six) months the demand was confirmed with interest and penalty of 50% was imposed. 4. Aggrieved by the above the appellant has filed an appeal before Commissioner (Appeals). The Commissioner (Appeals) confirmed the demand of Rs.4,08,748/- (Rupees Four Lakhs Eight Thousand Seven Hundred and Forty Eight only) and imposed equal penalty. However, the issue of limitation was rejected. As regards the availment of Cenvat Credit of Rs.2,81,659/- (Rupees Two Lakhs Eighty One Thousand Six Hundred and Fifty Nine only) availed during December 2015, Commissioner (Appeals) has confirmed the total demand amount with interest for the period prior to 17th March 2012 and imposed 50% penalty. 5. Aggrieved by the above order, appellant filed an appeal before Hon ble CESTAT. The Tribunal vide Final Order No. 20121/2019 dated 28.01.2019 held that out of the demand of Rs. 4,08,748/- (Rupees Four Lakhs Eight Thousand Seven Hundred and Forty Eight only) an amount of Rs.2,58,144/- (Rupees Two Lakhs Fifty Eight Thousand One Hundred and Forty Four only) was hit by limitation and demand of Rs.1,50,604/- (Rupees One Lakh Fifty Thousand Six Hundr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund of Rs. 2,58,144/- (Rupees Two Lakhs Fifty Eight Thousand One Hundred and Forty Four only) on the ground that the appellant has not paid that amount under protest is incorrect and it amounts to not adhering to Tribunal s judgment or ignoring, which is bad in law. The appellant further submits that filing of or contesting the adjudication order is sufficient and this act itself shall be deemed as payment under protest. In this regard, the appellant submitted the following caselaws: (i) Mafatlal Industries Ltd. Vs. U.O.I=1997 (89) E.L.T. 247 (SC) (ii) Ashok Shetty Associates C.A Vs. Commissioner of C. Ex., Mangalore=2017 (4) GSTL 53 (Tri.-Bang.) (iii) Manik Machinery Mafs. Pvt. Ltd. Vs. Commissioner of C. Ex., Mumbai=2003 (157) E.L.T. 439 (Tri.-Mum.) (iv) Commissioner of C.Ex., Nagpur Vs. Abhideep Chemicals Pvt. Ltd. = 2002 (143) E.L.T 70 (Tri.-Mum.) (v) Surbhi Enterprise Vs. Commissioner of C. Ex., Ahmedabad=2007 (210) E.L.T. 588 (Tri.-Ahmd.) (vi) Commissioner of Central Excise, Chennai-II Vs. Rane Brake Linings Ltd. =2003 (158) E.L.T. 840 (Tri.- Chennai) (vii) Fluidomat Ltd. Vs. Commissioner of Central Excise, Indore =2002 (139) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee had taken irregular credit with an intention to avoid payment of duty. Therefore they held that imposition of penalty is unsustainable and accordingly set aside the said portion of the order. In so far as payment of interest is concerned, they relied on the judgment of the Punjab and Haryana High Court in the case of C.C.E., Delhi v. Maruthi Udyog Ltd. [2007 (214) E.L.T. 173 (P H)] [2007 (214) E.L.T. A50 (sic)] and held that as the assessee had only made an entry in the records and actually not taken or utilized such credit, the question of payment of any interest would not arise. Therefore, the levy of interest was also set aside. Aggrieved by the said order, the Revenue is in appeal. 9.1. The appellant submits that the Honb le CESTAT s decision is based on the decision of Hon ble High Court of Karnataka in the case of Bill Forge, wherein the penalty was dropped at the Tribunal stage and thereafter the Department went in appeal to the Hon ble High Court, which rejected the appeal. Since the appeal before the High Court is not with regard to penalty, therefore, in their case as well the penalty imposed in the first round of litigation is considered to have been drop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under protest. 15. I find that the appellant has filed the refund claim after one year after the Hon ble CESTAT Final Order No. 20121/2019, the relevant date for filing the refund in such cases is as per Section 11B(5) Explanation (B) (ec) of Central Excise Act, 1944, which mentions that the relevant date for filing the refund is the date of order of the Appellate Tribunal, however in this case the refund claim has been filed after one year of the Tribunal s order, hence it was held to be time-barred. 16. As regards the adjustment of the proportionate penalty imposed and adjusted by the adjudicating authority. I find that the Commissioner (Appeals) has held that the Hon ble Tribunal s has not passed any order as regards the penalty on the ineligible cenvat credit availed by the appellant. The appellant submits that the Hon ble Tribunal has followed the decision in the case of Bill Forge of the Hon ble High Court of Karnataka and interest only has been set aside, hence the Hon ble Tribunal has not passed any order as regards the penalty. I find that proportionate penalty amount is payable as there was wrong availment of Cenvat credit. Therefore the imposition and adjustment o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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