Custom, Excise & Service Tax Tribunal
D A Toll Road Private Limited vs Mumbai West on 13 March, 2020
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
MUMBAI
WEST ZONAL BENCH
SERVICE TAX APPEAL NO: 85988 of 2018
[Arising out of Order-in-Original No: 13/SKV-13/THCGST/2017-18 dated 21st
December 2017 passed by the Commissioner of Central Excise & GST, Thane.]
GF Toll Road Private Ltd
Reliance Energy Centre, 3r Floor, Santacruz (East) ... Appellant
Mumbai - 400055
versus
Commissioner of Central Tax & GST ...Respondent
Thane 4th Floor, Navprabhat Chambers, Ranade Road, Dadar (W), Mumbai - 400028 WITH
(i) Service Tax Appeal No: 85991 of 2018 (PS Toll Road Pvt Ltd),
(ii) Service Tax Appeal No: 85992 of 2018 (HK Toll Road Pvt Ltd),
(iii), Service Tax Appeal No: 85994 of 2018 (DA Toll Road Pvt Ltd),
(iv) Service Tax Appeal No: 85995 of 2018 (SU Toll Road Pvt Ltd),
(v) Service Tax Appeal No: 85997 of 2018 (JR Toll Road Pvt Ltd) and (vi) Service Tax Appeal No: 85998 of 2018 (TK Toll Road Pvt Ltd) [Arising out of Order-in-Original No: 12/SKV-12/THCGST/2017-18 dated 21st December 2017, 15/SKV-15 /THCGST/2017-18 dated 21st December 2017 10/SKV-10/THCGST/2017-18 dated 21st December 2017, 11/SKV-11 /THCGST/2017-18 dated 21st December 2017, 09/SKV-09/THCGST/2017-18 dated 21st December 2017 and 14/SKV-14 /THCGST/2017-18 dated 21st December 2017 passed by the Commissioner of Central Excise & GST, Thane.] APPEARANCE:
Shri Prakash Shah with Shri Mihir Mehta and Mohit Rawal, Advocates for the appellant Shri Bidhan Chandra, Additional Commissioner (AR) for the respondent ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 2 CORAM:
HON'BLE MR C J MATHEW, MEMBER (TECHNICAL) HON'BLE DR SUVENDU KUMAR PATI, MEMBER (JUDICIAL) FINAL ORDER NO: A/85578-85584 / 2020 DATE OF HEARING: 06/08/2019 DATE OF DECISION: 13/03/2020 PER: C J MATHEW The common issue for resolution in these seven appeals that are takeing for disposal together is the liability of interest, under rule 14 of CENVAT Credit Rules, 2004, arising on CENVAT credit that, admittedly, was taken even on such 'input services' as are deployed for rendering of services that were exempt from tax under Finance Act, 1994 but reversed before utilisation. Concomitantly, the penalty imposed under rule 15 of CENVAT Credit Rules, 2004, read with section 11AC of Central Excise Act, 1994, is also challenged in each.
2. The appellants, as concessionaires of National Highways Authority of India, are engaged in construction/upgradation of different carriageways with the agreement providing for operation and maintenance of the 'toll roads' that, admittedly, are exempt from tax under Finance Act, 1994. In the course of rendering such service, the appellants, having discharged service tax liability in the invoices ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 3 pertaining to procurement of services, acknowledged the eligibility to credit thereon in their internal accounting from 2010 onwards as also on tax liability discharged under 'reverse charge mechanism' without recording these in the prescribed returns filed by them till the one pertaining to the period from October 2013 to March 2014. During the course of investigations, the ineligible credit, since brought on record in the returns, was reversed in March 2016.
3. Each of the appellants was issued with notice dated 21 st April 2016 for recovery of the ineligible credit, charging of interest, under section 75 of Finance Act, 1994 read with rule 14 of CENVAT Credit Rules, 2004, till 31st March 2012 and imposition of penalty under rule 15 of CENVAT Credit Rules, 2004 read with section 78 of Finance Act, 1994. The ineligible credit, serving as the basis for confirmation of interest liability and imposition of penalty, that wer ordered to be reversed are Sl. Ineligible Appeal No. Appellant No. Amount (₹) 1 ST/85988/2018 G F Toll Road Pvt Ltd 3,10,66,741 2 ST/85991/2018 P S Toll Road Pvt Ltd 10,65,88,763 3 ST/85992/2018 H K Toll Road Pvt Ltd 2,61,19,925 4 ST/85994/2018 D A Toll Road Pvt Ltd 8,53,73,157 5 ST/85995/2018 S U Toll Road Pvt Ltd 3,22,97,909 6 ST/85997/2018 J R Toll Road Pvt Ltd 2,30,39,545 7 ST/85998/2018 T K Roll Road Pvt Ltd 1,50,07,692 31,94,93,732
4. An immediate controversy raised by the appellants is that, arising ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 4 from the acknowledgement of this charge of tax liability as credit for the very first time in the return is pertaining to the 'half-year' commencing in October 2013, the impugned orders erred in fastening liability of interest from 2010 instead of October 2013. This, of course, does not impact on the penal detriment which is quantified as the amount wrongly taken as credit but has implications in the context of the amendment effected in rule 14 of CENVAT Credit Rules, 2004 that enabled invoking of interest liability only on credit that was utilised.
5. We have heard the submissions made by Mr Prakash Shah Learned Counsel for appellants, appearing along with Mr Mehta and Mr Rawat, on the legality of charging of interest and imposition of penalty on credit, though admittedly taken without eligibility, that was reversed without being utilised. On behalf of the appellants, it was canvassed that mere entry in the books, without staking legally valid claim by reflecting such credit in the 'half yearly' returns, does not constitute 'taking of credit' envisaged in rule 3 of CENVAT Credit Rules, 2004. It was argued, therefore, that a statutory provision that was not in existence when such credit was taken could not have been invoked for which reliance is placed on the decision of the Hon'ble High Court of Karnataka in Commissioner of Service Tax, Bangalore v. The Peoples Choice [2014 (36) STR 10 (Kar)]. It was also contended that reversal of credit before utilisation is as good as not having taken the credit ab initio for which reliance is placed on the decision of the ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 5 Hon'ble Supreme Court in Commissioner of Central Excise, Mumbai-I v. Bombay Dyeing & Manufacturing Co Ltd [2007 (215) ELT 3 (SC)]. As the impugned order has placed reliance on the decision of the Hon'ble Supreme Court in Union of India v. Ind-Swift Laboratories Ltd [2011 (265) ELT 3 (SC)], the appellants, contending its limited applicability, rely upon the decision of the Hon'ble High Court of Karnataka in Commissioner of Central Excise & Service Tax, LTU, Bangalore v. Bill Forge Pvt Ltd [2012 (279) ELT 209 (Kar)] in which emphasis was placed on the expression 'avail' vis-à-vis the expression 'taken' and that 'interest' is a compensation to Revenue recoverable, only if the exchequer has been deprived of its dues. Our attention is also drawn to order-in-appeal no. PVNS/40/APPEALS THANE/TH/2019- 20 dated 30th May 2019 of Commissioner of GST & Central Excise (Appeals), Mumbai which, in relation to identical recovery initiated against M/s KM Toll Road Private Limited for the period from October 2010 to September 2015 of credit reflected for the first time in returns for the period commencing October 2013, dropped the demand, interest and penalty imposed by the original authority.
6. Besides reiterating the primacy of the decision of the Hon'ble Supreme Court in re Ind-Swift Laboratories Ltd, the provisions of rule 14 of CENVAT Credit Rules, 2004 and the deliberate intent of including ineligible credit in their books of accounts for unsavoury purposes as found in the impugned orders, Learned Authorised ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 6 Representative contended that, notwithstanding the date on which notice was issued, the commission of breach, contrary to legal provisions existing then, could be proceeded against as laid down in the decision of Hon'ble Supreme Court in Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise [2015 (326) ELT 209 (SC)]. It was further argued that, for acknowledgement of credit, inclusion in records that were maintained in the normal course of business sufficed as clarified in circular no. 457/23/99-CX dated 20th May 1999. Decisions of the Hon'ble High Court of Bombay in Commissioner of Central Excise, Pune-I v. GL & V India Pvt Ltd [2015 (321) ELT 611 (Bom)], that of the Hon'ble High Court of Chhattisgarh in Commissioner of Central Excise & Customs, Raipur v. Vandana Vidyut Ltd [2016 (331) ELT 231 (Chhattisgarh), that of the Hon'ble High Court of Madras in Commissioner of Central Excise, Chennai-IV v. Sundaram Fasteners Ltd [2014 (304) ELT 7 (Mad)] and that of the Tribunal in Balmer Lawrie & Co Ltd v. Commissioner of Central Excise, Belapur [2017 (49) STR 331 (Tri-Mumbai)] were cited by Learned Authorized Representative to support his argument that, till the amendment effected in rule 14 of CENVAT Credit Rules, 2004, the interpretation afforded by the decision of the Hon'ble Supreme Court in re Ind-Swift Laboratories Ltd permitted no latitude in escapement from interest liability.
7. It is common ground that the appellants herein could not have ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 7 utilised CENVAT credit under any circumstance as their activity did not constitute 'taxable service' and that the entirety of credit, arising from discharge of tax liability on services procured by them, was, for the most part, reflected for the very first time only in the returns filed after October 2013. It is moot if, in the unlikely event of being liable to levy as a provider of 'taxable service', the appellant would have been permitted to discharge the liability through debit of accumulated credit that had never been reported in the statutory returns. It is the contention in support of the impugned orders that inclusion in the private records of an assessee suffices for the purpose of consequences of 'taking' of credit without being eligible to it; there is no doubt that executive instructions do tend to such a conclusion though the legality of utilisation of credit accounted thus may well have been called in question. That, of course, is mere academic debate in the acknowledged 'exempted' status of the appellants.
8. To continue in the same vein, within which lies the purported rationale for initiation of the impugned proceedings and the arguments made in support by Learned Authorised Representative, is a question that is proffered by philosophers, scientists and social anthropologists since the first decade of the 18th century before responding with a proposition reflecting thought, phenomena and behaviour: 'if a tree were to fall on an island where there were no human beings would there be any sound?'. A taxing authority, bound by the unimpeachable ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 8 realism of accumulating fiscal resource, can indulge in omphaloskepsis only at the cost of more worthwhile pursuits. We do not propose to contribute to the wealth of speculative articulation of this conundrum but, considering the cost in terms of measurable tree stumps and the total hierarchical experience of responsible, and accountable, adjudicators, it behoves us to scrutinize the statutory provisions invoked for confirmation of recoveries in the context of judicial pronouncements.
9. CENVAT credit, as a scheme, reconciles the charging provision with the valuation provision in the taxing statute; the descriptive expression 'cascading effect of taxation' is but an articulation of the angst of subjecting the levy included in the value of inputs to further taxation merely owing to physical absorption within the output. The operationalising of the scheme verbalises a mathematical equation; regrettably, the semantics, rendered complex owing to frailty of expression, overwhelms the simplicity of arithmetical addition and subtraction. By no stretch, can accumulated credit claim to acquire the status of 'legal tender' or its surrogate, as a 'negotiable instrument', and the debit in such account is neither a monetisation for the Treasury nor representative of an obligation under the taxing statute that is forgone by executive fiat on the authority of legislative delegation. The 'looseness' of drafting, if considered to be pivotal, in CENVAT Credit Rules, 2004 may well lead to a distortion of the scheme merely by being ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 9 unjustifiably rigid. The nearest equivalent to 'unutilizable credit' of taxes borne is 'monopoly currency' that is of no use for man or beast except in the restricted context of the game. For the adjudicating authority to hypothesise, or to conjecture, a motive outside the scheme of taxation as justification for neutralizing and penalizing is to venture into uncharted and unknown territory beyond the scope of consideration, at least, by responsible appellate authorities. We are not diffident about our disinclination to do so.
10. Rule 14 of CENVAT Credit Rules, 2004 is to be invoked in the specific circumstances enumerated therein. It is for that reason, and considering the breadth of the scheme of giving effect to the 'taxable event' in the statute of levy, that the reversal of credit before utilisation was held to be as good as non-availment of credit in the first instance. That proposition of law, settled by Hon'ble Supreme Court in re Bombay Dyeing & Manufacturing Co Ltd, stays unaltered and valid; any decisions, purportedly overruling this proposition, as projected by tax authorities, must be perceived within the inexorable logic of that seminal decision. We cannot, really, fault the tax authorities for proposing an unintended rigidity as their commitment to constitutional obligation, even if were a bit over-enthusiastic, is but natural. That, however, cannot confer validation to recoveries primed by such assumptions.
ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 10
11. It would appear that the decision of the Hon'ble Supreme Court in re Ind-Swift Laboratories Ltd, and the several decisions founded on that, were relied upon to discard, chronologically, preceding and succeeding decisions cited on behalf of the appellants. In doing so, the circumstances peculiar to the dispute that was carried to the Hon'ble Supreme Court do not appear to have been taken note of and thus contributing, in part, to the clogging of the appellate channel. The decision in re Ind-Swift Laboratories Ltd, doubtlessly, disfavoured the reading down of the disjunctive 'OR' in the impugned rule by the conjunctive 'AND' as contrary to the doctrine of enforcing expressed legislative intent; however, in that appeal of Revenue against the resort to writ jurisdiction for the alternative, no proposition of thematic integrity of the contents of the impugned rule was required to be resolved. Hence, the presumption of an earlier decision having been, thus, overruled does not appeal.
12. In its unamended version, rule 14 of CENVAT Credit Rules, 2004 was to be invoked in situations of 'Rule 14. Recovery of CENVAT credit wrongly taken or erroneously refunded.- Where the CENVAT credit has been taken or utilized wrongly or has been erroneously refunded, the same along with interest shall be recovered from the manufacturer or provider of the output service and the provisions of sections 11A and 11AB of the Excise Act or sections 73 and 75 of the Finance Act, shall apply mutatis mutandis for effecting such recoveries.' ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 11 and the immediate consequence of the decision of the Hon'ble Supreme Court to decline the accruals arising therefrom to the exchequer by imposing charge of interest only in further restrictive circumstances of 'Rule 14. Recovery of CENVAT credit wrongly taken or erroneously refunded.- Where the CENVAT credit has been taken and utilized wrongly or has been erroneously refunded, the same along with interest shall be recovered from the manufacturer or provider of the output service and the provisions of sections 11A and 11AB of the Excise Act or sections 73 and 75 of the Finance Act, shall apply mutatis mutandis for effecting such recoveries.' does not require further elucidation of legislative inent.
13. It merely suffices to consider the circumstances in which the intervention of the Hon'ble Supreme Court was sought by Revenue and the proposition argued before us by citing rule 14 of CENVAT Credit Rules, 2004 as laying down declared law for charging of interest. The Hon'ble Supreme Court, unambiguously, disapproved of the conscious substitution, by the Hon'ble High Court of Punjab & Haryana, of 'and' in place of 'or' in rule 14 of CENVAT Credit Rules, 2004 (as it was before the amendment) in the face of specific construction therein. However, the context of the disavowal is no less important for it went on to state that '20. Therefore, the attempt of the High Court could lead down the provision by way of substituting the word "OR" by an ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 12 "AND" so as to give relief to the assessee is found to be erroneous. In that regard the submission of the counsel for the appellant is well-founded that once the said credit is taken the beneficiary is at liberty to utilize the same, immediately thereafter, subject to the Credit rules.' and, thereby, placing the decision in perspective. It would appear that more than the substitution, the Hon'ble Supreme Court was concerned about an unintended benefit flowing to the assessee and, presumably, one that was enabled to use such wrongly taken credit without intrusive supervision. The writ remedy, under Article 226 of the Constitution of India, was sought by the assessee consequent upon the disregard of clarification sought by them on an order emanating from the Settlement Commission and initiated by them for ascertainment of the date of commencement and date of conclusion in the computation of interest and the Hon'ble Supreme Court was constrained to note that any such proceeding was beyond statutory jurisdiction and that the basis of statutory settlement was the contents of the show cause notice which, inter alia, proposed recovery of interest, that, by reason of application before the said Commission, was precluded from validated, or otherwise in adjudication proceedings. Hece, therein, it was not the interest liability determined in adjudication proceedings that was under
consideration.
14. From the above circumstances, it would appear that the Hon'ble Supreme Court was concerned, not with the outcome of such proposed ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 13 recovery in adjudication but with the basis of pre-adjudicatory 'settlement' that could not be interfered with, and, hence, the ruling therein may not be universally applicable in all disputes pertaining to recovery of CENVAT credit. The original legislative intent is also palpably apparent from the alacrity with which the Central Government chose to forgo the happy consequences of the decision of the Hon'ble Supreme Court.
15. This is not to suggest that the subsequent decisions of the Hon'ble High Court of Chhattisgarh and of the Hon'ble High Court of Bombay, as well is that of the Tribunal, should not be followed by us; however, it may be worthwhile to peruse the circumstances in which those disputes had their genesis. The issue in re Vandana Vidyut Ltd was the relegation of credit taken as 'mere paper entries' which, according to the Tribunal, was not the same as utilization but overruled by the Hon'ble High Court on evaluation that rectification by reversal came about only after issue of show cause notice. In re GL & V India Pvt Ltd, the question of law was framed by Hon'ble High Court of Bombay after taking note of the suo motu taking of credit by the assessee that, by itself, was unauthorized. In re Balmer Lawrie & Co Ltd, the impugned goods were received at the premises of the assessee merely for storage, and entirely unrelated to the activities conferring eligibility to credit, which was held to be beyond the pale of CENVAT Credit Rules, 2004. Thus, we see an unbroken thread connecting the ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 14 decision of the Hon'ble Supreme Court and the decisions that followed thereon in which the utilization was not a matter of consideration. With this proposition of case to case application of the said decision, the subsequent decisions are precedents to be followed in disputes that are similarly placed.
16. In the dispute before us, the reversal of credit before issue of show cause notice renders the taking of credit to have been erased ab initio. There is not even a whiff of allegation that the credit reversed had been utilized, or could have been utilized, to the detriment of the exchequer. The renunciation of jurisdiction to adjudicate upon the claim for exclusion from interest liability does not appear to have been sanctioned by the decision of the Hon'ble Supreme Court.
17. From a perusal of rule 14 of CENVAT Credit Rules, 2004 and, in particular, of the disjunctive collation of 'taken', 'utilized' and 'erroneously refunded' with the expression 'wrongly' qualifying, not three but only two, it would appear that the assumption of credit and a refund of credit, if wrong, would have to pay the price in the form of 'interest.' However, it is unusual for 'utilization' to be qualified with 'ineligibility' on its own as 'utilization' is solely for the purpose of discharge of tax/duty liability which, even if not warranted, does not, by any stretch of usage, behove description as 'wrongly.' Such a transferred epithet can only reasonably mean 'utilization' after having ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 15 been wrongly taken and, thereby, made ineligible.
18. In these circumstances of the decision, relied upon by the adjudicating authority, not being extendable to the alleged infractions on the part of the appellants herein and a catena of decisions in re Bombay Dyeing and Manufacturing Co Ltd, Chandrapur Magnet Wires (P) Ltd v. Collector of Central Excise, Nagpur [1996 (81) ELT 3 (SC)], and Hello Minerals Water (P) Ltd v. Union of India [2004 (174) ELT 422 (All.)] the foundation of the confirmation of demand, charging of interest and the imposition of penalty is built upon sand. We cannot endorse confirmation of these liabilities and, therefore, set aside the impugned orders to allow the appeals.
(Order pronounced in the open court on 13/03/2020) (C J Mathew) Member (Technical) (Dr. Suvendu Kumar Pati) Member (Judicial) PER: DR. SUVENDU KUMAR PATI
19. I have the privilege to go through the draft order prepared by my senior colleague and I fully concur with his findings. However, to bring ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 16 more clarity to the issue concerning applicability of interest to CENVAT credit recovery, I would like to reiterate the findings given by me while deciding similar matter in the case of Nagpur Nagrik Sahakari Bank Ltd. Vs. CCE & ST, Nagpur vide final order No. A/87763/2018 dated 26th October 2018, the relevant portion which is reproduced as under:-
"6. In order to appreciate the legality of the order imposing interest, it is imperative to have a look at Rule 14 of the Cenvat Credit Rules, existing then, which reads as under:-
"Rule 14. Recovery of Cenvat credit wrongly taken or erroneously refunded. - Where the Cenvat credit has been taken or utilized wrongly or has been erroneously refunded, the same along with interest shall be recovered from the manufacturer or the provider of the output service and the provisions of Sections 11A and 11AB of the Excise Act or Sections 73 and 75 of the Finance Act, shall apply mutatis mutandis for effecting such recoveries."
A bare reading of the heading and the content of Rule 14 would reveal that cenvat credit wrongly taken or erroneously refunded is subjected to recovery with interest for the period covered. The starting line of Rule 14 has got two components (i) Where the Cenvat credit has been taken or utilized wrongly or (ii) has been erroneously refunded; the same along with interest shall be recovered from the manufacturer or the provider of the output service.
ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 17 There is no clarification found in the Cenvat Credit Rules to make a distinction between taking of cenvat credit or utilising the same. Going by the general meaning of the word "taking" it can be said that acceptance of particular thing and utilisation of the same comes only when someone has the said thing in his possession. Occasionally, those words are used as synonyms of each other and therefore used interchangeably. A careful scrutiny of the heading of Rule 14 vis-a-vis its content would clearly indicate that both taking and utilisation are put in the body of the Rule to carry the same meaning since in the body of Rule 14 "taken" is not prefixed with the word "wrongly" which is embedded in the heading part while "utilisation" in the body of the Rule is suffixed with the word "wrongly" and the same word "utilisation" is conspicuous by its absence in its Heading. Therefore, it cannot be said that "cenvat credit has been taken"
as found in the body of Rule 14 is the credit rightfully taken and utilised wrongfully since the heading itself says that cenvat credit wrongly taken has to be recovered. To my considered view a stroke or slash between the word "taken" and "utilised" would have brought clarity to the Rule but being creature of statute this Tribunal cannot traverse beyond its scope. However, having regard to the fact that the word "has been" occurring twice in the same sentence indicates that "taken" and "utilised" is used to carrying the same meaning that has been suffixed with the word "wrongly" which is conspicuously found absent in the body but found present in the heading as "wrongly taken" and it has segregated erroneous refund by using "has been" once again to signify the distinction between the first part and the second part.
7. This above observation is further fortified by the fact that the legislature itself comprehended the import of language into Rule 14 not only created confusion amongst the assessee but also had resulted in rise of litigation and more particularly after the ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 18 judgment passed by the Hon'ble Apex Court referred supra, it had amended the Rule with effect from 17.03.2012 by substituting "taken or utilised wrongly" with the words "taken and utilised wrongly" and thereafter also segregated both "taken and utilised" part from "erroneous refund" by bifurcating rule 14 into two clauses by way of making a distinction between "taken wrongly" but "not utilised" and "taken and utilised wrongly". In the former case i.e. "wrongly taken and not utilised" Rule 14(1)(i) made it clear that in such a case the credit shall be recovered and in case of wrong utilisation, in view of Rule 14(1)(ii) such recovery shall be made with interest from the manufacturer or provider of service.
8. I have carefully gone through the order passed by the Hon'ble Apex court in UOI vs. Ind-Swift Laboratories Ltd. case referred above and also the decision of the Hon'ble High Court of Bombay reported in 2015 (321) ELT 611 on which heavy reliance has been placed by the ld. AR for the respondent department. In both the decisions, the aspect of interpretation of statute has been discussed and it has been held that the word "or" cannot be substituted with the word "and" appearing in Rule 14 while interpretating a statute to bring a different meaning into it but the factual context of the case is entirely different in Ind-Swift Laboratories Ltd.'s case in the sense that the respondent Ind-Swift Laboratories had availed of those credits wrongfully and not confined the noting of credit in its book of accounts alone. Interest is usually payable when the amount due is not paid back or amount deposited as tax is taken back erroneously. In the instant case, the duty paid against which cenvat credit was noted in the books of account, was all along lying in the government treasury and it was neither utilised by way of adjustment against duty demand nor taken as a refund erroneously for which the appellant can be asserted to pay ST/85988, 85991, 85992, 85994, 85995, 85997 & 85998/2018 19 interest for the amount which had never come to its account for utilisation."
20. I, therefore, agree with the finding of my learned brother.
(Order pronounced in the open court on 13/03/2020) (Dr. Suvendu Kumar Pati) Member (Judicial) */as050306031103