Custom, Excise & Service Tax Tribunal
Sagar Cements Ltd vs Rangareddy - G S T on 13 December, 2023
1 Appeal No. E/30195/2019
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
HYDERABAD
REGIONAL BENCH - COURT NO. - I
Excise Appeal No. 30195 of 2019
(Arising out of Order-in-original No.HYD-EXCUS-004-COM-011-18-19 dated 24.10.2018
passed by Commissioner of Central Tax, Hyderabad)
Sagar Cements Ltd., .. APPELLANT
Mattampally (Village & Mandal),
Kodad, Nalgonda District,
Telangana - 508 204.
VERSUS
Commissioner of Central Tax .. RESPONDENT
Rangareddy - GST
GST Commissionerate,
Posnett Bhavan, Tilak Road,
Ramkoti, Hyderabad,
Telangana - 500 001.
APPEARANCE:
Shri Y Sreenivasa Reddy, Advocate for the Appellant.
Shri V R Pavan Kumar, Authorised Representative for the Respondent.
CORAM: HON'BLE Mr. ANIL CHOUDHARY, MEMBER (JUDICIAL)
HON'BLE Mr. A.K. JYOTISHI, MEMBER (TECHNICAL)
FINAL ORDER No. A/30444/2023
Date of Hearing:13.12.2023
Date of Decision:13.12.2023
[ORDER PER: BENCH]
The issue involved in this appeal is whether the appellant have rightly
taken Cenvat Credit of Clean Energy Cess (CEC) which have paid on the coal
imported by them as well as purchased in DTA, for use in their factory.
2. Heard the parties.
3. We find that the issue in this appeal had come up earlier before Co-
ordinate Bench of this Tribunal and in appellant's own case along with the
batch of appeals in appeal no. E/30704/2016 vide Final Order No. A/30684-
30692/2019 dated 16.07.2019 held as follows:
"3. We have heard the learned Counsels for the appellants as well as the learned Departmental
Representatives at length. It is the case of the appellants that the CEC is levied as per Section 83
of the Finance Act, 2010 which specifically states that "they shall be levied and collected in
accordance with the provisions of this Chapter, a Cess to be called, Clean Energy Cess, as a duty of
excise on goods specified in Tenth Schedule being goods produced in India at the rate set forth in
the said Schedule for the purposes of financing and promoting clean energy initiatives, fund the
2 Appeal No. E/30195/2019
research in the area of clean energy or for any other purpose relating thereto." They argued that
the CEC is nothing but a duty of excise and is collected by the Central Excise officers and therefore
there is no reason to deny them the credit of Cenvat under Rule 3 of CCR, 2004. While agreeing
that the CEC is not explicitly listed in Rule 3 of CCR as one of the taxes on which credit can be
taken, it is the argument of the appellants that this should not be the reason for denying them the
Cenvat credit because CEC is also a form of excise duty. They rely on the case law of Shree Renuka
Sugars [2014 (302) ELT 33 (Kar.)] in which the Hon'ble High Court of Karnataka held that with
reference to sugar cess which was also in the nature of duty of excise that Cenvat credit is
admissible even though it is not explicitly mentioned in Rule 3 of CCR, 2004. They would also place
(6) reliance in the order of CESTAT-Bangalore in the case of The Ramco Cements Ltd [2018 (10)
TMI 10 (CESTAT-Bang.)] in which the Tribunal held that the assessee is entitled to the Cenvat
credit of CEC relying on the aforesaid judgment of Hon'ble High Court of Karnataka in the case of
Shree Renuka Sugars. They also placed reliance on the decision of State Street Syntel Services Pvt
Ltd [2019-TIOL-1468-CESTAT-Mumbai] in which the Tribunal allowed Cenvat credit of Swachh
Bharat Cess which is also not indicated in Rule 3 of CCR, 2004 as a duty eligible for Cenvat credit.
4. With respect to imposition of interest, it is their contention that credit of CEC and interest
cannot be imposed because credit has been availed after 01.04.2012 and interest can therefore
be imposed only if the credit has been availed as well as utilized and not otherwise. In this regard
they place reliance on the judgment of the Hon'ble High Court of Karnataka in the case of Bill
Forge Pvt Ltd [2011-TIOL-799] in which it was held that if the assessee has reversed wrongly
availed Cenvat credit without utilizing, it will amount to not taking credit at all. Therefore, if
Cenvat credit is availed by the party but is unutilized and subsequently reversed, it amounts to
nonavailment of Cenvat credit and no interest accrues.
5. On the question of penalty, it is submitted on behalf of the appellants that a plain reading of
Rule 15(1) of CCR shows that penalty has to be levied in cases where Cenvat credit is availed or
utilized. However, the Hon'ble High Court of Madras in the case of Strategic Engineering Pvt Ltd
[2014 (310) ELT 509] held that mere taking of Cenvat credit is not sufficient for imposition of
interest as well as penalty. In view of the above, they pleaded that the impugned orders may be
set aside and their appeals may be allowed.
6. On behalf of the revenue, learned departmental representatives forcefully argued that no
Cenvat credit is admissible with respect to CEC under CCR, 2004 for the following reasons:
(1) A plain reading of Rule 3 of CCR, 2004 shows that the manufacturer or producer of final
products or a provider of output service shall be allowed to take credit only of the following
duties and cesses:
i. the duty of excise specified in the First Schedule to the Excise Tariff Act, leviable under the
Excise Act;
ii. the duty of excise specified in the Second Schedule to the Excise Tariff Act, leviable under
the Excise Act;
3 Appeal No. E/30195/2019
iii. the additional duty of excise leviable under section 3 of the Additional Duties of Excise
(Textile and Textile Articles) Act,1978 ( 40 of 1978);
iv. the additional duty of excise leviable under section 3 of the Additional Duties of Excise
(Goods of Special Importance) Act, 1957 ( 58 of 1957);
v. the National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001
(14 of 2001);
vi. the Education Cess on excisable goods leviable under section 91 read with section 93 of the
Finance (No.2) Act, 2004 (23 of 2004);
via. the Secondary and Higher Education Cess on excisable goods leviable under section 136
read with section 138 of the Finance Act, 2007 (22 of 2007);
vii. the additional duty leviable under section 3 of the Customs Tariff Act, equivalent to the
duty of excise specified under clauses (i), (ii), (iii), (iv), (v) (vi) and (via);
viia. the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act,
viii. the additional duty of excise leviable under section 157 of the Finance Act, 2003 (32 of
2003);
ix. the service tax leviable under section 66 of the Finance Act;
ixa. the service tax leviable under section 66A of the Finance Act;
ixb. the service tax leviable under section 66 of the Finance Act;
x. the Education Cess on taxable services leviable under section 91 read with section 95 of the
Finance (No.2) Act, 2004 (23 of 2004); and
xa. the Secondary and Higher Education Cess on taxable services leviable under section 136
read with section 140 of the Finance Act, 2007 (22 of 2007); and
xi. the additional duty of excise leviable under section 85 of Finance Act, 2005 (18 of 2005 )
paid on-
(i) any input or capital goods received in the factory of manufacture of final product or
premises of the provider of output service on or after the 10th day of September, 2004;
and
(ii) any input service received by the manufacturer of final product or by the provider of
output services on or after the 10th day of September, 2004 including the said duties, or
tax, or cess paid on any input or input service, as the case may be, used in the
manufacture of intermediate products, by a job-worker availing the benefit of exemption
specified in the notification of the Government of India in the Ministry of Finance
(Department of Revenue), No. 214/86- Central Excise, dated the 25th March, 1986,
published in the Gazette of India vide number G.S.R. 547 (E), dated the 25th March, 1986,
and received by the (9) manufacturer for use in, or in relation to, the manufacture of final
product, on or after the 10th day of September, 2004.
7. Therefore, every form of cess or tax paid by the appellant is not admissible for Cenvat credit
under CCR, 2004. They concede that CEC is collected as a duty of excise. However, they point out
that various other forms of cesses are also collected by the Government and all Cesses are
collected as if they are a form of duty of excise. If the intention of the Legislature/ Government
was to provide credit of any duty of excise or any cess paid by the assessee, Rule 3 would have
4 Appeal No. E/30195/2019
been worded so, instead of listing a few specific forms of duty of excise and cesses as eligible for
credit. Therefore, simply because a particular tax is collected as a duty of excise, it does not
automatically entitle the assessee to avail Cenvat credit on such duty. They further argue that the
case of Shree Renuka Sugars (supra) does not apply to present case as that was in the context of
sugar cess and not in respect of CEC. Although sugar cess was also not explicitly covered in CCR,
2004, the Hon'ble High Court of Karnataka had allowed such credit against which they filed an SLP
which is pending before the Hon'ble Apex Court as reported in 2015 (319) ELT A.119 (SC). Even
the reasoning given by the Hon'ble High Court of Karnataka for allowing Cenvat credit of sugar
cess does apply to this case. In the case of sugar cess, all provisions of Central Excise Act and Rules
were made applicable to sugar cess as well. However, with respect to the CEC, Notification No.
02/2010 has been issued making some provisions of the Central Excise Act, 1944 applicable to the
CEC. These Sections are 5A, 6, 9, 9A, 9AA, 9C, 9D, 9E, 11, 11A, 11AA, 11AB, 11AC, 11B, 11BB, 11C,
11D, 11DD, 11DDA, 12A, 12B, 12C and 12D; Chapters III, VI, VIA and VIB. From the above, it is
evident that other provisions of Central Excise Act do not apply to the CEC. The CCR, 2004 have
been framed under Section 37 (Chapter VII) of the Central Excise Act, 1944. Neither Chapter VII
nor Section 37 has been made applicable for CEC at all. Therefore, any rule that has been framed
under Section 37 including CCR, 2004 cannot, by any stretch of imagination, be made applicable
to CEC. Therefore, the ratio of the judgment of the Hon'ble High Court of Karnataka in the case of
Shree Renuka Sugars (supra) with respect to sugar cess for which the entire Central Excise Act and
Rules were made applicable, will not apply to the present case.
8. They further argued that the CEC has been levied by the Parliament for a specific purpose. It is
based on the principle "Polluter pays" which is a well established principle in the field of
environment and has been emphasized by the Hon'ble Apex Court in several cases related to the
environment. This principle states that if any activity is causing pollution, the polluter has to pay
for the cleanup. Coal is a cheaper but a polluting form of energy. Therefore, cess has been levied
on it so as to increase the cost of such form of energy. The amounts so collected from the CEC are
to be used for development of cleaner forms of energy. Thus, it is a case of environment
protection and those who are using dirty forms of energy such as coal have to pay for it. If the
assessees are allowed Cenvat credit of CEC, it would amount to returning with one hand what has
been collected from them with the other to discourage use of dirty polluting fossil fuels. This
defeats the purpose of levying CEC. Therefore, no Cenvat credit should be given for the CEC paid
by the appellants.
9. They, futher argued that Cenvat credit or erstwhile Modvat credit or present day GST input tax
credit system are all based on the principle of avoiding cascading effect of taxes. The tax is levied
at several stages and the tax paid at each stage is given as credit to the next stage payer. Thus,
the tax paid gets sets off against the tax paid at the next stage. Ultimately, the consumer bears
the full burden of tax on the full value. Therefore, where there is only levy of one tax at one point,
no Cenvat credit is admissible. If Cenvat credit or any other form of refund of the tax is given with
respect to taxes levied at single point, there is no point in collecting taxes at all. In the present
5 Appeal No. E/30195/2019
case, the CEC is levied at one and only one stage. There is no CEC again on the cement or other
products manufactured by the assessees. This is similar to the basic customs duty which is also
levied at one point and no Cenvat credit is given on such duty.
10. With respect to interest they would assert that once the assessee has availed or utilized
Cenvat credit, interest is payable. On the question of penalty also they would assert that penalty
is imposable on all the appellants for wrongly availing Cenvat credit in clear violation of CCR,
2004. They relied on the order of this Bench in the case of Singareni Collieries Co. Ltd [2016 (341)
ELT 378 (Tri-Hyd)] to assert that the CEC was imposed on the principle of 'Polluter pays' and
therefore it stands on a different footing than other Cesses.
11. We have considered the arguments on both sides and perused the records. The short point to
be decided is whether the appellants are entitled to Cenvat credit of the CEC paid on the coal
imported by them or otherwise. The CEC was levied under Section 83 of the Finance Act, 2010
which reads as follows:
"83. (1) This Chapter extends to the whole of India.
(2) ...........................................
(3) There shall be levied and collected in accordance with the provisions of this Chapter, a
cess to be called the Clean Energy Cess, as duty of excise, on goods specified in the Tenth
Schedule, being goods produced in India, at the rates set forth in the said Schedule for the
purposes of financing and (12) promoting clean energy initiatives, funding research in the
area of clean energy or for any other purpose relating thereto.
................................................"
The purpose of levying the CEC is evidently to promote and finance clean energy initiatives by
taxing the coal.
12. A plain reading of Rule 3 of CCR, 2004 shows that it did not provide for Cenvat credit of every
duty of excise and cess but only of some and this list does not include CEC imposed in Finance Act,
2010. It is the case of the assessees that since CEC is also a form of excise, they are entitled to
Cenvat credit even in the absence of an explicit provision under Rule 3 of CCR, 2004. It is also their
assertion that following the ratio of the decision of the Hon'ble High Court of Karnataka in the
case of Shree Renuka Sugars (supra) with respect to sugar cess, Single Member Bench of Tribunal-
Bangalore in the case of The Ramco Cements Ltd (supra) allowed credit of CEC. Therefore, the
ratio may be followed and they may be allowed Cenvat credit. We proceed to decide this issue on
merits. It is undisputed that a plain reading of Rule 3 of CCR, 2004 shows that Cenvat credit is
admissible only in respect of some cesses and not in respect of all the cesses and duties of excise.
The Hon'ble High Court of Karnataka gave benefit of credit of sugar cess in respect of Shree
Renuka Sugars (supra) expanding the scope of Cenvat Credit Rules by taking a broader view and
holding that sugar cess also being duty of excise Cenvat credit may not be denied.
6 Appeal No. E/30195/2019
13. It is, however, now a well settled legal position laid down, after the aforesaid decision of
Hon'ble High Court of Karnataka that fiscal statutes must be interpreted strictly as per the letter
of word and not the spirit of the law, ignoring any amount of hardship and eschewing any equity
in taxation. However, in the event of ambiguity in taxation liability statute, the benefit should go
to the assessee. From a plain reading of Rule 3 of CCR, 2004, we do not find any ambiguity. If the
intention was to allow credit of all forms of duties of excise and cesses, the Rule would have said
so. Instead, it only listed some forms of duties of excise, additional duties of customs and cesses
on which credit will be admissible and CEC is not one of them.
14. We have also considered the argument of the appellants that the ratio of judgment of Hon'ble
High Court of Karnataka in the case of Shree Renuka Sugars (supra) not being overturned by any
superior judicial forum, must apply. On going through the judgment of the Hon'ble High Court of
Karnataka, we find that in that case the entire Central Excise Act and Rules were applicable to
sugar cess but in the case of CEC, only some provisions of Central Excise Act have been made
applicable. Section 37 of the Central Excise Act under which the CCR, 2004 as well as other Rules
are framed are not made applicable to the CEC. Therefore, the Finance Act itself does not
conceive of applying Cenvat Credit Rules to the CEC. In the absence of any explicit provision, they
cannot be made applicable to the CEC. In other words, neither does Rule 3 of CCR provide for
credit of CEC nor do the provisions of CEC make CCR and any other Rules under Central Excise Act
applicable to it. Therefore, this is clearly distinguishable from the case of the Hon'ble High Court
of Karnataka in the case of Shree Renuka Sugars (supra).
15. Although it is now settled that taxing statutes must be literally interpreted, we have also
examined the spirit and purpose of levying the CEC. It is evident from Section 83 of Finance Act,
2010 that CEC has been levied on coal to discourage use of the polluting forms of energy and
encourage use of cleaner forms of energy. This is based on the principle of 'Polluter pays'. If the
CEC collected by the Government is returned to the assessee through the backdoor in the form of
CCR, 2004, we will be doing a great disservice to the country by replacing the principle of 'Polluter
pays' with 'Pollution pays'. We will be encouraging use of polluting forms of energy by undoing
the very purpose for which CEC has been levied.
16. We also proceed to examine the matter in the larger context of our legal system. The
Constitution of India has divided the powers between Legislature, Executive and Judiciary. The law
making power has been given to the Legislature which frames the Acts. Subordinate legislations in
the form of rules, regulations, notifications (including CCR, 2004) are notified by the Government
and are then placed before the Parliament whose Committee of subordinate legislation examines
them to see whether they reflect the intent of the Act and get modifications made, if necessary.
Thus the legislative power delegated to the Government is again subject to control of the
legislature. It is for this reason the rule making power is not delegated to any other arm of State
but only to Government which is answerable to the legislature.
7 Appeal No. E/30195/2019
17. However, where there is a conflict between the constitutional provisions and the laws made
or the parent act and the subordinate legislations vires of such act and rules are tested and
decided by the Hon'ble Supreme Court and Hon'ble High Courts under Article 32 and 226 of the
Constitution of India. The Tribunals (including this Tribunal) are created under Article 323B of the
Constitution of India which was inserted by the 42nd amendment to the Constitution. The
Jurisdiction of the Tribunals and their powers have been examined by the Five Member
Constitutional Bench of the Supreme Court in the case of L. Chandra Kumar Vs Union of India in
Civil Petition No. 481/1980 vide judgment dated 18.03.1997. Paras 94 and 100 of which are
reproduced below:
"94. Before moving on to other aspects, we may summarise our conclusions on the
jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where
the vires of statutory provisions are questioned. However, in discharging this duty, they cannot
act as substitutes for the High Courts and the Supreme Court which have, under our
constitutional setup, been specifically entrusted with such an obligation. Their function in this
respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny
before a Division Bench of the respective High Courts. The Tribunals will consequently also
have the power to test the vires of subordinate legislations and rules. However, this power of
the Tribunals will be subject to one important exception. The Tribunals shall not entertain any
question regarding the vires of their parent statutes following the settled principle that a
Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In
such cases alone, the concerned High Court may be approached directly. All other decisions of
these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by
virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their
respective High Courts. We may add that the Tribunals will, however, continue to act as the
only courts of first instance in respect of the areas of law for which they have been
constituted. By this, we mean that it will not be open for litigants to directly approach the High
Courts even in cases where they question the vires of statutory legislations (except, as
mentioned, where the legislation which creates the particular Tribunal is challenged) by
overlooking the jurisdiction of the concerned Tribunal.
...............
100. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and 8 Appeal No. E/30195/2019 rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."
18. From the above, it is evident that this Tribunal can also examine the vires of the Act and Rules with the condition that the Statute under which this Tribunal was created (Customs Act, 1962) cannot be questioned by this Tribunal. Further, the power of this Tribunal to decide on the vires of the Act or Rules is subject to scrutiny by Division Bench of the High Courts.
19. It may be seen that the scope of this Tribunal may extend to testing the vires of rules, regulations etc., but certainly does not extend to making the rules or modifying them. In the absence of any explicit provision to give Cenvat credit of CEC under Rule 3 of CCR, 2004, it is not for this Tribunal to enlarge its scope. To sum up:
a) Rule 3 of CCR, 2004 does not provide for Cenvat credit of CEC.
b) Rules under Central Excise Act including CCR, 2004 or Section 37 under which they are framed are not made applicable to CEC under the Finance Act, 2010.
c) It is not open for this Tribunal to enlarge or modify the scope of Act or rules and they should be interpreted as they are drafted without any intendment.
d) If Cenvat credit of CEC is allowed, it will undo the very purpose for which it is levied and vitiate 'polluter pays' principle.
e) The ratio of the judgment of the Hon'ble High Court of Karnataka in the case of Shree Renuka Sugars (supra) does not apply to CEC.
Hence, we find that the assessees are not entitled to Cenvat credit under Rule 3 of CCR, 2004. We respectfully disagree with the Order of the Hon'ble Single Member in the case of The Ramco Cements Ltd (supra) in view of the above, especially the inapplicability of Section 37 and by implication, the CCR, 2004 framed thereunder to the Clean Energy Cess.
20. Insofar as the interest on Cenvat credit taken is concerned, wherever Cenvat credit has been availed but not utilized, the interest need not be paid but it has to be paid in cases where the Cenvat credit has been taken as well as utilized as has been held by the Hon'ble High Court of Karnataka in the case of Bill Forge Pvt Ltd (supra).
21. As far as the imposition of penalties are concerned, we find that this is an interpretational issue and it is possible for the assessees to have held a genuine belief that they are entitled for Cenvat credit of CEC and hence have taken Cenvat credit. Therefore, we find that the imposition 9 Appeal No. E/30195/2019 of penalty under Rule 15 of CCR, 2004 is not justified and needs to be set aside. In conclusion, the impugned orders are modified as follows:
A. The denial of Cenvat credit on Clean Energy Cess is upheld. B. In all cases where Cenvat credit has been availed but not utilized, no interest is payable and in cases where Cenvat credit has been availed and utilized, appropriate amount of interest is payable.
C. All penalties are set aside.
22. The appeals are partly allowed as herein above.
Separate assenting order - Per Ms. SulekhaBeevi C.S.
23. I have gone through the order recorded by brother Member (Technical) in these appeals. I agree with the conclusion arrived by my brother Member as to the issue whether credit is eligible on Clean Energy Cess paid by the appellant. However, I do not concur with the entire discussions recorded by my brother Member for reaching such conclusion. I therefore record separate order as under:-
24. Clean Energy Cess is levied as duty of excise on goods specified in Tenth Schedule. Thus, it is a cess in the nature of excise duty on the 'production' of coal and is collected at the time of removal of raw coal, raw ignite and raw peat from the mines of the factory. The intention of the levy of this cess is for the purposes of financing and promoting clean energy initiatives, fund the research in the area of clean energy or for any other purposes relating thereto. It is specifically stated in the notification that this cess has to be paid by cash. The liability to pay cess cannot be discharged using CENVAT credit.
25. As already discussed by brother Member, Rule 3 of CENVAT Credit Rules, 2004 does not expressly provide for availing credit on Clean Energy Cess. The sixth proviso introduced in Rule 3(4) of CENVAT Credit Rules, with effect from 29.6.2010, provides that CENVAT credit on any duty specified in sub-rule (1) shall not be utilized for payment of Clean Energy Cess leviable under section 83 of the Finance Act, 2010 (14 of 2010). Thus, CEC has to be paid using cash only. This consequently implies that no credit can be availed on C.E.C so as to utilize it for making payment of any other duty.
26. The argument put forward by the Revenue pointing out that facts in the case of M/s. Shree Renuka Sugars Ltd. (supra) cannot be applied to the facts of these appeals also merits consideration. In Shree Renuka Sugars (supra), the question was with regard to the eligibility of credit on sugar cess paid by the assessee therein. The Hon'ble High Court of Karnataka held the issue in favour of assessee observing that the entire provisions of Central Excise Act / Rules are made applicable to sugar cess. In respect of Clean Energy Cess, only certain provisions of Central Excise Act are made applicable. The CENVAT Credit Rules have been made on exercise of powers conferred by Section 37 of Central Excise Act, 1944. However, Section 37 has not been made applicable to Clean Energy Cess. Thus, it can be seen that there was no intention to allow credit 10 Appeal No. E/30195/2019 on the clean energy cess levied. For these reasons, I concur with the conclusion arrived by Member (Technical) that credit on Clean Energy Cess is not eligible.
27. I agree with para 20 and 21 with regard to demand of interest and penalties imposed. Further, wherever refund of the unutilized credit on cess is sought, the refund is not eligible since the credit itself is wrongly availed and ineligible.
28. The appeals are partly allowed as above."
4. We further note that it is the case of the assessee that they have reversed the Cenvat Credit soon after having taken the credit, before utilisation. Hence, no interest is chargeable. Learned Counsel, further urges that in the facts and circumstances, the penalty imposed may be deleted.
5. Accordingly, following the Precedent Judgment by this Tribunal in appellants own case, we hold as follows:
5.1 We find that no interest have been demanded in the Adjudication Order. The penalty imposed is set aside.
5.2 We allow this appeal in part by setting aside the penalty and dismiss the appeal on merits.
6. Appeal partly allowed.
(Dictated and pronounced in open court) (ANIL CHOUDHARY) MEMBER (JUDICIAL) (A.K. JYOTISHI) MEMBER (TECHNICAL) jaya