2017 (12) TMI 1082

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..../2015 was issued on the following three issues: (i). The appellant have availed Cenvat credit on Capital Goods  Electric Generating Set Amounting to Rs. 23,18,988/- (Rs.11,59,949/- during the month of May 12 and balance 50% in subsequent financial year) of duty paid under protest, on the strength of supplementary invoice No.2 dated 23/11/2011 issued by the supplier  M/s Quippo Energy Pvt. Ltd. in respect of the goods removed earlier on 24th May, 2011 without payment of duty and without having registered themselves with the Department. (ii). During the course of audit, it was observed that the assessee was engaged also in trading activity of items such as Lawn Mover, Tillers etc. since 01/04/2011. The trading activity had been ....

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....Commissioner that the assessee had sufficient balance of Cenvat credit, all along, which was more than the amount they have reversed. As such there being no usage of the credit by them, no liability for interest arises. Moreover, in view of the amendment in Rule 14 of CCR, 2004 wherein the words "taken or utilized wrongly" the words "taken and utilized wrongly" have been substituted vide Notification No.18/2012-CE(NT) dated 17.03.2012. The learned counsel also relies on the ruling of Hon'ble Karnataka High Court in the case of Commissioner of Central Excise Vs Bill Forge Pvt. Ltd. reported at 2012 (26) STR 204 (Kar.) wherein the Hon'ble High Court have held as under: "22. In the instant case, the facts are not in dispute. The assessee....

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....s, once the entry was reversed, it is as if that the Cenvat credit was not available. Therefore, the said judgment of the Apex Court has no application to the facts of this case. It is only when the assessee had taken the credit, in other words by taking such credit, if he had not paid the duty which is legally due to the Government, the Government would have sustained loss to that extent. Then the liability to pay interest from the date the amount became due arises under Section 11AB, in order to compensate the Government which was deprived of the duty on the date it became due. Without the liability to pay duty, the liability to pay interest would not arise. The liability to pay interest would arise only when the duty is not paid on the d....

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....impugned credit on the basis of Supplementary Invoice is not hit by the exclusion provided in the Rule 9(1) (b) of the Cenvat Credit Rules. 5.3.12 As per Rule 3 of the Cenvat Credit Rules a manufacturer of final products or a provider of taxable service is allowed to take credit of the duty paid on any input or capital goods received in the factory of manufacturer of the final products or provider of output service. Further, Rule 4 of the Cenvat Credit Rules provides that the Cenvat credit in respect of capital goods received in a factory shall be taken only for an amount not exceeding fifty percent of the duty paid on such capital goods in the same Financial Year and the balance amount of credit may be taken in the subsequent Financial ....