Custom, Excise & Service Tax Tribunal
M/S. Bhel vs C.C.E. & S.T., Bhopal on 27 November, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066. COURT - II Appeal No.E/2177/2012-EX[SM] [Arising out of Order-in-Appeal No.111/BPL/2012, Dated 04.06.2012, passed by C.C.E.(Appeals), Bhopal] M/s. BHEL : Appellants Vs. C.C.E. & S.T., Bhopal : Respondents
Present for the Appellants :
Shri Z.U. Alvi, Advocate Present for the Respondents :
Shri AK Dhowan, DR Coram: Honble Mr.D.N. Panda, Judicial Member Date of Hearing : 27.11.2014 FINAL ORDER NO.54535/2014, DATED: 27.11.2014 PER: D.N.PANDA Ld. counsel explains that M/s. BHEL had accumulated credit of nearly Rs.1 crore at all times. They record CENVAT credit in statutory record duly and also review that periodically. If excess credit is taken at any time, that is reverted immediately without utilisation thereof. In such situation, when certain entries of CENVAT credit appeared in record inadvertently and no utilisation thereof was made, interest has been asked for unreasonablly.
2. Ld. counsel brings out the distinction between credit availed and credit utilised following the ratio laid down by the Honble Supreme Court in the case of CCE, Mumbai-I Vs. Bombay Dyeing & Mfg. Co. Ltd. [2007 (215) ELT 3 (SC)] and says that the said judgment was not placed before the Honble Supreme Court while the judgment in the case of U.O.I. Vs. Ind Swift Lab [2011 (265) ELT 3 (SC)] was delivered. Further, considering the difficulties, Govt. has also amended the law for no charge of interest on unutilised credit. In such circumstance, there shall not be levy of interest nor penalty in the fitness of the circumstance of the case.
2. Revenue opposes above contentions supporting adjudication.
3. Case of appellant was unutilisation of credit. Therefore, exchequer not being prejudiced in absence of finding that there was no sufficient credit on record while set off of duty liability was made against CENVAT credit account by appellant, appeal succeeds. Therefore, appeal is allowed.
(Dictated and Pronounced in the open Court) (D.N.PANDA) JUDICIAL MEMBER SSK
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Appeal No.E/2177/2012