Custom, Excise & Service Tax Tribunal
Cce, Raipur vs M/S. Vandana Vidyut Ltd on 26 November, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
Excise Appeal NO. 1900-1902/2006-EX(SM)
[Arising out of Order-In-Appeal No. 10,11&12/RPR-I/2005 dated 30.01.2006 passed by CCE, Raipur]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
CCE, Raipur Appellant
Vs.
M/s. Vandana Vidyut Ltd. Respondents
Coram: Honble Ms. Archana Wadhwa, Judicial Member Appearance:
Shri M.S.Negi, AR for the Appellant None for the Respondent Date of Hearing: 26.11.2013 FO ORDER NO. 58537-58538/2013_ Per Ms. Archana Wadhwa:
Being aggrieved with the order passed by Commissioner (Appeals), revenue has filed the present appeal.
2. The respondents had obtained central excise registration for manufacture of various excisable goods on 06.09.2000. However, they had not installed the furnace and plant & machineries required for the manufacture of finished excisable goods even after a lapse of five years. But the respondents, meanwhile, installed and commissioned a biomass power plant for generation and sale of electricity to outside buyers. The respondents took Cenvat credit on various items as inputs which were used in the manufacture of parts, components and accessories of capital goods items and as capital goods which were further used in the bio-mass power plant during the period October ,2000 to April, 2003. The respondents have been submitting monthly returns showing NIL production and clearance of dutiable final products in respect of which central excise registration had been taken by them. As there was neither any plant and machinery installed for manufacture of excisable goods nor any activity of manufacturing process being carried on, the electricity generated out of the bio-mass power plant could not be used captively for manufacture of any excisable goods. Thus the credit so availed by the respondents appeared to be inadmissible. Therefore, three show cause notices were issued to the respondents for recovery of credit availed totally amounting to Rs. 62,97,587/- alongwith interest payable and for imposition of penalty. The lower authority has disallowed the credit and ordered for recovery of interest. However, no penalty was imposed.
3. The respondent reverse the credit, by accepting the same having been wrongly taken but contested the confirmation of interest on the ground that the said credit was not utilized by them and as such would not attract any interest.
4. Commissioner (Appeals) allowed the appeal by following the various decisions of the Tribunal laying that where the wrongly availed credit has not been utilized, no interest would be confirmed.
Hence, the present appeal.
5. I find that the short issue involved in the appeal revenue is that though the credit was wrongly availed by the respondent but remained as a paper enter only, interest would be attracted or not.
6. I find that the Honble Supreme Court decision In the case of Commissioner of Central Excise, Pune Vs. SKF India Ltd. [2009 (239) ELT 385 (SC)] was considered by the Honble Karnataka High Court in the case of Commissioner of Central Excise & Service Tax, Bangalore V/s. Bill Forge Pvt. Ltd. [2012 (26) STR 204 (Kar.)]. It was held that if the credit availed by an assessee is reversed before utilization of the same, no interest liability would arise. By following the said decision, it has to be held that the respondents are not liable to pay any interest. Accordingly the appeals filed by the Revenue is rejected.
(Pronounce in the open Court) (Archana Wadhwa) Member (Judicial) Jyoti* ??
??
??
??
2