2018 (7) TMI 1122

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....efly, the facts of the present case are that the respondents are manufacturers of two wheeler motor vehicle falling under Chapter 87112011 and 87112019 of the First Schedule to the Central Excise Tariff Act, 1985 and are availing the CENVAT credit under the provisions of CENVAT Credit Rules, 2004. On verification of the records of the assessee, it was observed by the jurisdictional Range Superintendent that the assessee had availed and utilized inadmissible credit of service tax relating to services like construction services, repair and maintenance services, Business Auxiliary Service and Cargo service etc., after apportionment of service tax credits by their unit at Hosur plant. The said service tax credit availed and utilized were based ....

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....tice. Hence the present appeal. 3. Heard both sides and perused records. 4. The learned AR for the Revenue submitted that the impugned order dropping the proceedings initiated in the show-cause notice is not sustainable in law. He further submitted that the Commissioner in the impugned order has gone beyond the show-cause notice inasmuch as the demand made in the show-cause notice is only with respect to levy of interest and imposition of penalty. He further submitted that the respondent has not only availed but also utilized the ineligible credit and therefore the demand of interest could not have been set aside. It is his further submission that inadmissibility of credit was accepted by the respondent during investigation and accord....

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....ustries Pvt. Ltd. [2011 (23) STR 337 (Kar.)] which has been followed in the case of Cargill India Pvt. Ltd. Vs. CCE, Bangalore [2018-TIOL-116-CESTAT-BANG] and in Nestle India Ltd. Vs. CC&CE, Goa [2017(5) GSTL 294 (Tri. Mumbai)]. He further submitted that the question of availing and utilization of credit and consequential demand of interest and imposition of penalty will not arise insofar as the credit availed was in order. Further the show-cause notice was issued only with the proposal to demand interest and impose penalty without demanding credit or proposing to appropriate the credit so reversed. It is his further submission that it is a settled position that there can be no proposal to demand interest and impose penalty without demand o....