TaxTMI 
TaxTMI 
2026 (4) TMI 514
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....demand to Rs.58,66,606/-, being the Cenvat Credit involved on the 15594 kgs mis-appropriated nickel (impugned order). 2. The brief fact of the case is that Department based on certain internal reports furnished by the appellant to the effect that there was certain mis-appropriation of duty paid nickel by the employee of the appellant in respect of which the appellant had taken irregular credit. The Department also noticed that there were certain internal reports indicating mis-appropriation or non-accounted of nickel and also an incidence of an admittedly clandestine removal and burning of certain records leading to a conclusion that certain amount of nickel were not issued in relation to manufacture of final product even though appellan....
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....counsel produced documents showing details of the CENVAT credit balance for the years 2002-03 to 2011 - 12. It is submitted by him that they have reversed the credit before utilization and therefore the demand of interest and penalty imposed is not proper. This plea of the appellant that they have reversed the credit prior to utilization has to be looked into on the background of judgements in the case of Bill Forge (supra), and Strategic Engineering Pvt Ltd., (supra) and also on the facts presented by the case. From the above, it is fit to remand the matter to the adjudicating authority for reconsideration of the matter leaving open all the issues. The impugned order is set aside and the appeal is allowed by way of remand." 4. However, ....
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....t was not taken. He also submits in this case that there is no dispute that the amount was reversed, suo moto, on 01.05.2010. 7. The Learned AR on the other hand, apart from reiterating the findings of the impugned order, also submits that the Tribunal had made an open remand and therefore, the Adjudicating Authority had rightly held that there was a non-accounted of 15944 kg of nickel and not 5411 kg. 8. Heard both the sides and perused the records. 9. We find that from the findings and the submissions made by the both the sides and records that certain amount of nickel imported by the appellant where mis-appropriated and not accounted for as having been actually used in the manufacture of excisable goods. Admittedly, certain inci....
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....elevant record is only 5411 kg which is based on the reports as considered by the Adjudicating Authority vide his order dated 22.07.2016 and not 15944 kgs as held by the Adjudicating Authority in the impugned order. Similarly, the amount involved of improper credit is only Rs. 21,15,313/-, as confirmed and duly appropriated by the earlier Adjudicating Authority. 10. The next issue is whether in the facts of the case interest was payable or otherwise. We find that in this case clearly it is an admitted position that there was surplus available in the credit balance during the material time and hence, it cannot be said that the credits were actually utilized towards payment of duty and therefore interest is recoverable. Interest is payable....
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....the act is authorized by the principal or authorised to do unlawful activity. We find that they have also contested invokation of extended period. They have relied on the following judgments: i) Sitaram Motilal Kalal Vs Santanuprasad Jaishanker Bhatt [AIR 1966-SC-89] ii) Pushpabai Purushtom Udeshi Vs Rajit Ginning & Pressing [AIR 1977 (SC) 353] iii) Commissioner of Central Excise Vs Chemphar Drugs & Liniments [1989 (40) ELT 276 - SC] iv) Padmini Products Vs Commissioner of Central Excise [1989 (43) ELT 195 (SC)] v) Commissioner of Central Excise Vs H.M.M. Ltd., [1995 (76) ELT 4979 (SC)] vi) Cosmic Dye Chemical Vs Commissioner of Central Excise [1995 (75) ELT 721 (SC)] 13. We have obse....
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....e payment of interest only on the goods that it was initially taken properly, but were never actually utilized towards discharge of any excise duty, and also credit available throughout the material period was sufficient and in excess of disputed credit. We find that, interest is not payable as it has not been established that the said in-admissible credit was utilized towards any payment of duty. Thus, in the facts of the case interest was not leviable. However, in view of judgments cited in this regard, the appellant was aware of legal position for not taking credit in respect of such missing nickel and still they did not inform Department nor reversed the credit immediately on being made aware of the situation and it was only in 2010 tha....