TaxTMI 
TaxTMI 
2016 (3) TMI 709
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....al Excise Tariff Act, 1985 and availed facility of cenvat credit under Cenvat Credit Rules, 2004 in respect of inputs, capital goods as well as the input services. During the course of reconciliation, the appellant in the month of September 2008, detected that they have availed cenvat credit twice on the same set of documents and thereafter on their own in the month of March 2009, reversed the same and informed the Range Superintendent vide letter dated 19.5.2009. The department issued show cause notice dated 16.9.2009 asking to explain as to why wrongly availed serviced tax credit amounting to Rs. 1,46,72,686/- should not be demanded and recovered under Rule 14 of the Cenvat Credit Rules, 2004 and penalty under Rule 15(3) and interest amou....
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....relied upon the following decisions:- (i) GTL Infrastructure Ltd. vs. CST, Mumbai reported in 2015 (37) STR 577 (Tri.-Mum.); (ii) CCE, Madurai vs. Strategic Engineering (P) Ltd. reported in 2014 (310) ELT 509 (Mad.); (iii) Gurmehar Construction vs. CCE, Raipur reported in 2014 (36) STR 545 (Tri.-Del.); (iv) Oswal Cable Products vs. CST, Delhi-I reported in 2015 (38) STR 437 (Tri.-Del.); (v) Dharampal Premchand Ltd. vs. CCE, Noida reported in 2014 (309) ELT 508 (Tri.-Del.); (vi) CCE, Raipur vs. Sharda Energy & Minerals Ltd. reported in 2013 (291) ELT 404 (Tri.-Del.); (vii) Gary Pharmaceuticals (P) Ltd. vs. CCE, Ludhiana reported in 2013 (297) ELT 391 (Tri.-Del.); (viii) ....
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....even if cenvat credit is taken though not utilized in terms of the provisions of Rule 14 of the Cenvat Credit Rules, 2004 and therefore the ratio of the said decision would prevail over the decision of the Hon'ble Karnataka High Court. In support of his argument, he placed reliance on the following decisions:- (i) CCE, Pune-I vs. GL & V India Pvt. Ltd. reported in 2015 (321) ELT 611 (Bom.); (ii) BHEL vs. CCE, Hyderabad-I reported in 2014 (303) ELT 139 (Tri.-Bang.); (iii) Balmer Lawrie & Co. Ltd. reported in 2014 (301) ELT 573 (Tri.-Mum.); (iv) UOI vs. Ind-Swift Laboratories Ltd. reported in 2011 (265) ELT 3 (SC). 4.1 It is his further submission that this Tribunal in the case of Dr. Reddy's Laboratorie....
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.... effecting such recoveries." A reading of the Rule makes it clear that where the cenvat credit is taken or utilized or erroneously refunded, the same along with interest should be recovered from the manufacturer or the provider of output service and the provisions of Section 11A and 11AB shall apply mutatis mutandis for effecting such recoveries. The recovery of interest is under Rule 14. Only the mode of recovery is as provided for under Section 11AB of the Central Excise Act. The Hon'ble Supreme Court in the case of Ind-Swift Laboratories Ltd. (supra) examined the question whether interest would be liable to be paid even when the cenvat credit has been taken wrongly but not utilized. The Hon'ble Supreme Court noted that since the Rule ....
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....f the assessee regarding the erroneous availment of the Cenvat credit, the assessee accepted the mistake and immediately reversed the entry. In the present case, the reversal of the entry is after a period of ten months. In that view of the matter, we find that even on facts, the said judgment is distinguishable. 16. In so far as the judgment passed by the Madras High Court is concerned, the Madras High Court has taken a view that mere taking of Cenvat credit facility is not at all sufficient for compelling the assessee to pay interest as well as penalty. With great respect to the Honble Judges of the Madras High Court, we may say that this is not what has been held by their Lordships of the Apex Court. The Apex Court has in clear....