TaxTMI 
TaxTMI 
2020 (3) TMI 320
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. We, therefore, need to state, albeit briefly, the facts. 2. The show cause notices were issued pursuant to audit of the records of the appellant pertaining to availment of credit under rule 3 of CENVAT Credit Rules, 2004, in circumstances of being brought within the tax net, with incorporation of section 65(105)(zzzx) of Finance Act, 1994 applicable to providers of 'telecommunication services' with effect from 1st June 2007. The appellant had been rendering 'inter-connection usage', on authority of license for operating 'national long-distance' and 'international long distance' issued by the Government of India in Department of Telecommunications, to other similarly placed licensees from much earlier but discharging their obligation since the incorporation of the taxable service in Finance Act, 1994. Common to both notices was the allegation of delayed payment of tax, primarily by debit of CENVAT credit, for which recovery of such amounts, along with interest, was proposed and the allegation of availment of credit against debit notes issued by their divisions and branches. The assessee had reversed such credit and the adjudicating authority, taking note of discharge of tax li....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Tribunal in TVS Whirlpool Ltd v. Commissioner of Customs, Madras [1996 (86) ELT 144 (Tribunal), opining that 'It is only reasonable that the period of limitation that applies to a claim for the principal amount should also apply to the claim for interest thereon. We find no merit in the appeals and they are dismissed with costs', while dismissing the appeal of Revenue and the decision of the Hon'ble High Court of Delhi in Kwality Ice Cream Company v. Union of India [2012 (27) STR 8 (Del)], enjoining that 'It is, therefore, clear that the principle adopted by the Supreme Court was that the period of limitation, unless otherwise stipulated by the statute, which applies to a claim for the principal amount should also apply to the claim for interest thereon.' are abundantly clear in supporting his contention. He submits that the adjudicating authority had failed to render a finding on this critical aspect. Furthermore, the availability of credit for carrying forward the ineligible amount to the following year is a clear indication of the lack of any of the ingredients that warrant invoking of the extended period in section 11 A of Central Excise Act, 1944 and t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ennai [2016 (340) ELT 632 (Mad)] holding that '26....... The Rule simply states that Cenvat credit shall be availed in respect of capital goods received in a factory at any point of time in a given financial year. In other words, if a factory is manufacturing goods which are dutiable, the date on which a person receiving capital goods is entitled to claim Cenvat credit, is left to his choice. He is entitled to take any date within the financial year subject only to the 1st condition imposed under Rule 6 (4), namely that on the date on which he avails credit, the goods to be manufactured out of them should not be exempted goods. This is the proper manner of construction of Rules 4(2)(a) and 6(4).' 6. On the issue of multiple availment of CENVAT credit and availment against debit notes issued by branches/divisions pertaining to 'capital goods' and 'input service' received by them, it is contended by Learned Counsel that the reversal, wherever carried out, and the eligibility of the appellant, as assessee, for all inflows and outflows of the corporate enterprise had been overlooked by the adjudicating authority. Reliance has been placed on the decision of the Tribunal in V....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the decision of the Hon'ble Supreme Court in Union of India v. Ind-Swift Laboratories Ltd [2011 (265) ELT 3 (SC)] has rendered a finality to the leviability of interest on CENVAT credit without subjecting the credit to test of utilization and that the findings in the adjudication order, based on circular no. 942/3/2011-CX dated 14th March 2011 of Central Board of Excise & Customs, should not be discarded. There is no doubt that subsequent decisions of the Tribunal, in Balmer Lawrie & Co Ltd v. Commissioner of Central Excise, Belapur [2017 (49) STR 331 (Tri-Mumbai)], and of the Hon'ble High Court of Chhattisgarh in Commissioner of Central Excise & Customs, Raipur v. Vandana Vidyut Ltd [2016 (331) ELT 231 (Chhattisgarh)] and of the Hon'ble High Court of Bombay in Commissioner of Central Excise, Pune-I v. GL & V India Pvt Ltd [2015 (321) ELT 611 (Bom)] have followed this decision while distinguished a contrary view adopted by the Hon'ble High Court of Karnataka in Commissioner of Central Excise & Service Tax, LTU , Bangalore v. Bill Forge Pvt Ltd [2012 (279) ELT 209 (Kar)]. Learned Counsel drew our attention to the decision of the Tribunal in Commissioner of Central Excise, Pune-III ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat more than the substitution, the Hon'ble Supreme Court was concerned about an unintended benefit flowing to the assessee and, presumably, one that was enabled to use such wrongly taken credit without intrusive supervision. The writ remedy, under Article 226 of the Constitution of India, was sought by the assessee consequent upon the disregard of clarification sought by them on an order emanating from the Settlement Commission initiated by them for ascertainment of the date of commencement and date of conclusion for purposes of computation of interest and the Hon'ble Supreme Court was constrained to note that any such proceeding was beyond statutory jurisdiction and that the statutory settlement could only have been based on the contents of the show cause notice which, inter alia, proposed recovery of interest, that, by reason of application before the said Commission, could not be validated, or otherwise, in adjudication proceedings. 11. From the above circumstances, it would appear that the Hon'ble Supreme Court was concerned, not with the outcome of such proposed recovery in adjudication but with the basis of pre-adjudicatory 'settlement' that could not be interfered with, ....