2014 (2) TMI 276

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....osed upon the Appellant under Rule 15(1) Cenvat Credit Rules, 2004. The period involved in the appeal is from April 2008 to May 2009. The issue involved in this appeal is that Appellant took Cenvat Credit of Service Tax paid on GTA services from the place of removal to the place of delivery. It is the case of the Revenue that with the amendment of the definition of 'Input Services' as defined under Rule 2(l) of the Cenvat Credit Rules, 2004, under Notification No.10/2008-C.E.(N.T.) dated 01.03.2008, Cenvat Credit of Service Tax paid on GTA Services from the place of removal is not admissible. 2. Shri S.J. Vyas (Advocate) appearing on behalf of the Appellant argued that larger bench in the case of ABB Ltd. Vs. Commr. [2009 (15) S.T.R. 23 (T....

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....s Pvt. Ltd. reported in 2010 (261) E.L.T. 204 (Tri. -Bang.) 3. Shri Raju (AR) appearing on behalf of the revenue defended the order of the Adjudicating Authority. It was his case that, as per Supreme Court's judgment in the case of UOI Vs. IND -SWIFT LABORATORIES LTD. [2011 (265) E.L.T. 3 (SC)] interest liability under Rule 14 is attracted as soon as a wrong Cenvat Credit is taken by the Appellant. 4. Heard both sides and perused the case records. So far as admissibility of Cenvat Credit on GTA Services from the place of removal is concerned, it is observed that Rule 2(l) of Cenvat Credit Rules, 2004, after its amendment with effect from 01.04.2008, under Notification No.10/2008-C.E.(N.T.) dated 01.03.2008, reads as follows: 'Input Servi....

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.... is payable when the credit taken is not utilized and reversed subsequently. It is the case of the Appellant that as per the ratio laid down by the Apex Court and the jurisdictional High Court of Gujarat when a cenvat credit taken is reversed by an assessee than it amounts to not taking Cenvat Credit at all and accordingly no interest is payable. In this regard, it is seen that the law laid down by the Hon'ble Supreme Court and High Courts relied upon by the appellant were with respect to admissibility of an exemption Notification when there was a condition for availing exemption that Cenvat Credit with respect to certain inputs should not be taken by an assessee. It was in that context that Hon'ble Supreme Court and jurisdictional High Cou....

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....wrongly or has been erroneously refunded and that in the case of the aforesaid nature the provision of Section 11AB would apply for effecting such recovery. 17. We have very carefully read the impugned judgment and order of the High Court. The High Court proceeded by reading it down to mean that where CENVAT credit has been taken and utilized wrongly, interest should be payable from the date the CENVAT credit has been utilized wrongly for according to the High Court interest cannot be claimed simply for the reason that the CENVAT credit has been wrongly taken as such availment by itself does not create any liability of payment of excise duty. Therefore, High Court on a conjoint reading of Section 11AB of the Act and Rules 3 & 4 of the Cred....