2018 (8) TMI 1975

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....rials such as Alloy Steel Wire Rods imported inter alia from Japan and other countries in Europe. The said inputs are acquired and brought into India on payment of Customs Duty, Countervailing Duty (CVD) and Special Additional Duty along with Education Cesses. 2. On scrutiny of records, it was noticed that the appellant had availed Cenvat Credit of Education Cess and Secondary and Higher Education Cess paid on the basic Customs duty levied on imported inputs. The Adjudicating Authority confirmed the demand of Cenvat Credit totaling Rs. 3,34,458/- along with interest of Rs. 43,828/-. The Adjudicating Authority appropriated the demand and interest as paid by the appellants. However, he imposed a penalty of Rs. 1,67,229/- under Rule 15 (....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....of the Assistant Commissioner by passing the impugned Order-in-Appeal No. 101/KOL-V/2017 dt. 21/11/2017. Particularly, it was perfunctorily observed that there was availment and utilization of credit of Rs. 3,34,458/- and that in view of the Board Circular No. 897/17/2009 dt. 3.9.2009 and the Apex Court decision in Union of India v. Ind Swift Laboratories Ltd. 2011 (265) ELT 3 (SC), interest was also recoverable thereon even in the absence of any utilization of credit. The penalty imposed on the appellant was also confirmed in view of the fact that the appellant had admitted to wrongful availment of credit, and that the error was detected in pursuance of audit proceedings. As such, there appeared to be no express finding of suppression, fra....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... proceedings under Rule 8 (3A) CER, 02 by Asst. Commissioner)= Rs. 2,69,486/- being the balance demand for which no proof of utilization or short payment of duty has been supplied by the concerned authorities to date" 7. Further, since it is the trite law that there is no one to one correlation between the credit taken against inputs/input services to the finished goods cleared on payment of duty by the concerned assessee, there can be no utilization of the disputed credit if there was sufficient/surplus undisputed credit balance left even after meeting the duty requirements for the said period. Though such contention was placed before the Assistant Commissioner and the Commissioner (Appeals), no finding has been made in regard thereto, ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....les, 2004, was amended in the manner aforesaid, so as to allow recovery of only such portion of inadmissible credit that has been wrongly availed and utilized. Ind Swift (supra) therefore, has no application whatsoever, for the period from March 17, 2012 to November 2012. 8. Further, given that the Commissioner (Appeals) has not made any specific finding of any intent to evade duty on the part of the appellant, and there are no statements or any evidence for that matter as to the prevailing intentions of the Directors of the appellant or those in charge of its operations, during the said period, it is submitted that the extended period may not be invoked and no penalty may be imposed in terms of Rules 14 and 15 of the Cenvat Credit Rules....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....Board of Dawoodi Bohra Community v. State of Maharashtra, 2010 (254) ELT 196 (SC), which provides that a larger bench decision of the Apex Court continues to gain precedence over a subsequent contrarian decision by a bench of a lesser strength). Evidently, it could not have been the intention of the Apex Court in Ind Swfit (supra) to render redundant the prior larger bench decisions of the apex Court on revenue neutrality, and compromise the applicability of such doctrine to the Cenvat Credit Rules, 2004. The observations of the Karnataka High court in Bill Forge (supra) in paragraph 18 thereof, whereby Ind Swift (Supra) is distinguished, thereby stand justified. Thus, on applying the principles laid down by the Apex Court on Revenue neutra....