Commissioner Of Central Excise, ... vs Sagar Cements Ltd
- CitationAppeal No. 10/2008
Ratio decidendi
The rule this decision rests on
The Tribunal holds that where cenvat credit wrongly availed has remained unutilised, lying in balance in the assessee's books, no interest is demandable on that credit. Where the availment of cenvat credit was made during a period when the eligibility of credit on inputs used in mines was under sustained litigation, the assessee cannot be held liable to penalty for wrongly availing that credit.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No. 10/2008 dated 11/08/2008 passed by the Commissioner of Customs, Excise & Service Tax, Hyderabad-III ]
For approval and signature:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes
Commissioner of Central Excise, Customs And Service Tax Hyderabad-III Opp: LB Stadium Road, Basheerbagh, Hyderabad 500 004 Andhra Pradesh Appellant(s)
Versus Sagar Cements Ltd. Mattampalli (Village & Mandal), Nalgonda District Andhra Pradesh Respondent(s)
Appearance:
Mr. S. Teli, AR For the Appellant
None For the Respondent
Date of Hearing: 13/02/2015 Date of Decision: 13/02/2015 CORAM:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER
Final Order No. 20369 / 2015
Per: ARCHANA WADHWA
Being aggrieved with the order passed by the Commissioner (Appeals) Revenue has filed the present appeal. After hearing the learned AR I find that the Commissioner (Appeals) has upheld the decision of wrongly availed cenvat credit but has set aside the confirmation of interest and imposition of penalty on the ground that the credit wrongly availed was never utilized and was lying in balance.
2. The Honble Karnataka High Court in the case of CCE & ST, LTU, Bangalore Vs. M/s. Bill Forge Pvt. Ltd. [2011-TIOL-799-HC-KAR-CX] has held that if the credit remains unutilized in the Account Books, the question of demanding interest does not arise. As regards penalty, I find that Commissioner (Appeals) has discussed the entire case law on the subject and has held that for quite a substantial period the issue of availability of credit on inputs used in mines was under litigation, in such a case the respondent cannot be held guilty of availing the wrong credit. As such I fully agree with the views of Commissioner (Appeals) that no interest and penal liability would arise against the respondent. Accordingly the appeal filed by the Revenue is rejected.
(Order pronounced in open court)
(ARCHANA WADHWA) JUDICIAL MEMBER
iss
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