TaxTMI 
TaxTMI 
2013 (3) TMI 86
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....er alia, reliance has been placed on a decision of the Hon ble Karnataka High Court. The written submissions, however, are not accompanied by any copy of the Hon ble High Court s judgment, which has been produced by the learned Superintendent (AR). The learned Superintendent makes a lot of arguments with reference to the Hon ble High Court s judgment and these will be considered in a later part of this order. The gist of the written submissions is that any liability to pay interest on any amount of CENVAT credit would not arise unless such credit has been utilized for payment of duty of excise on any goods or service tax on any taxable service. It is their case that, where CENVAT credit was merely taken by making an entry in the CENVAT acco....
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....02 read with Section 11AB of the Central Excise Act and proposing a penalty under Rule 13 of the CCR 2002 for violation of Rule 12 ibid. (The learned Superintendent (AR) points out that the rules mentioned in the operative part of the show-cause notice are incorrect and the same should be read as Rule 14 and Rule 15 of the CENVAT Credit Rules 2004. In this context, I observe that the appellant has not raised any grievance with regard to the provisions invoked in the show-cause notice). The proposals in the notice were contested by the party, stating that no amount of credit had been utilized by them and that the entire amount of credit taken had been reversed before the issuance of the show-cause notice and therefore they were not liable to....
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....ed that the word or appearing between the words taken and utilized in the text of the rule could not be read as and . On this basis, the Hon ble Supreme Court set aside a judgment of the Punjab & Haryana High Court wherein the High Court had read down the provisions so as to hold that no liability to pay interest arose in a case where an amount of CENVAT credit taken but not utilized was reversed later on. The ruling of the apex court is binding on all courts and authorities in the country. According to the learned Superintendent (AR), the interpretation given to Rule 14 by the High Court in the case of Bill Forge Pvt. Ltd. is contrary to the apex court s ruling. According to her, the Hon ble High Court reached a conclusion regardless of th....
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....dated 13.08.2002 in W.P. No. 14175/2002 (K. Srinivas Rao Vs. State of A.P. and Ors.). Particular reference has been made to the following paragraphs of the High Court s judgment: Per incuriam and sub silentio are exceptions to the concept of stare decisis. Sir John Salmond in his Treatise on Jurisprudence has aptly stated the circumstances under which a precedent can be treated per incuriam. A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute, i.e., in ignorance of a statute or a rule having the force of statute, i.e., delegated legislation. This rule was laid down for the House of Lords by Lord Halsbury in the leading case (London Street Tramways V. L.C.C. (1898) ....
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....here the court gives a decision per incuriam because the provisions of a statute or the authority of a case have not been brought to their attention [Lord Goddard, CJ, in Moore Vs. Hewitt (1947 (2) AIl.ER 270]. The concept gets attracted either when an important provision of law eluded the attention of the Court or where the Court was allusive to such provisions while rendering the decision. Instances of per incuriam may also arise where the decision is rendered ignoring a binding precedent. After considering the above arguments, I have found great force therein. The doctrine of per incuriam is applicable against a judgment rendered in ignorance of any statutory provisions. It is applicable even in a case where the court which ....
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.... provider, which stage is far removed from the initial stage of taking of credit. In other words, there is no question of set off or adjustment at the time of taking of credit. The provisions of Rule 3 are clear to this effect but the same did not enter into reckoning when the Hon ble High Court decided the case of Bill Forge Pvt. Ltd. Reversal of CENVAT credit amounting to non-taking of credit is a concept which has been applied by this Tribunal, High Courts and the Supreme Court in cases where the benefit of some exemption notification (stipulating a condition to the effect that MODVAT/CENVAT credit on inputs shall not be taken) was claimed by manufacturers after reversing MODVAT/CENVAT credit already taken on inputs. If the same principl....