Custom, Excise & Service Tax Tribunal
M/S Nico Extrusion Pvt. Ltd vs Commissioner Of C.Ex. & Service Tax on 1 January, 2016
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.E/10909-10911/2013-SM [Arising out of OIA No.SRP/151 to 153/VAPI/2012, dt.20.12.2012, passed by Commissioner (Appeals), Central Excise & Service Tax, Vapi] M/s Nico Extrusion Pvt. Ltd Appellant Vs Commissioner of C.Ex. & Service Tax, Vapi Respondent
Represented by:
For Appellant: Shri Hardik Modh, Advocate For Respondent: Shri Jintendra Nair, A.R. For approval and signature:
Honble Mr. P.K. Das, Member (Judicial)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) Date of Hearing/Decision: 01.01.2016 Order No.A/10002-10004/2016, dt.01.01.2016 Per: P.K. Das A common issue is involved in these appeals and therefore, all are taken up together for disposal.
2. After hearing both the sides and on perusal of the records, I find that the main contention of the learned Advocate is that they have filed appeal against the demand of interest and imposition of penalty under Rule 14 of CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944. On a query from the Bench, the learned Advocate submits that they are not contesting the demand of CENVAT Credit, even it is in their favour by various decisions of the Tribunal as they have already paid. He also submits that they have not utilised the CENVAT Credit and therefore the demand of interest cannot be sustained. He relied upon the decision of the Honble Madras High Court in the case of Commissioner of Central Excise, Madurai Vs Strategic Engineering (P) Ltd 2014 (310) ELT 509 (Mad).
3. On the other hand, the learned Authorised Representative on behalf of the Revenue submits that the recent decision of the Honble Bombay High Court in the case of Commissioner of Central Excise, Pune Vs GL & V India Pvt. Ltd. Ltd 2015 (321) ELT 611 (Bom.) held that the demand of interest is sustainable even the amount was not utilised.
4. On perusal of the impugned order, I find that both the authorities below had not considered the facts on the imposition of penalty under Section 11AC of Central Excise Act, 1944. The appellant is not contesting the demand of CENVAT Credit, which they have already paid before issuance of Show Cause Notice. The contention of the learned Advocate is that there is no reason for reversal of credit and therefore, the interest is not payable. In my considered view, the Adjudicating authority should have examined the facts of the case for demand of interest and imposition of penalty under Section 11AC.
5. In view of the above discussion, the demand of duty which they have already paid, is upheld. The Adjudicating authority is directed to examine the demand of interest and imposition of penalty in the light of the facts of the case and the case laws. Needless to say that the Adjudicating authority shall give proper opportunity of hearing before passing the order. At this stage, the learned Advocate submits that it should also be considered as they are not required to pay the amount, as per law, the interest cannot be demanded. I direct the Adjudicating authority to consider this issue in accordance with the law. The appeal filed by the Appellant is disposed of in the above terms.
(Dictated & Pronounced in Court) (P.K. Das) Member (Judicial) cbb ??
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