Ramesh Nair ORDER
Ramesh Nair, Member (J)
1. The issue involved in the present case is that whether the appellant is liable to pay interest on the Cenvat credit availed on the contribution of service charges collected from employees in respect of Outdoor Catering Services and whether the appellant is liable to penalty.
2. Shri Dhaval Shah, Learned Counsel appearing on behalf of the appellant submits that though the appellant had availed the Cenvat credit under the bona fide belief but the same was not utilized and subsequently reversed. He submits that as per Rule 14 of Cenvat Credit Rules, 2004 the interest is chargeable when the credit has been taken or utilized or has been erroneously refunded. He submits that though the appellant had taken the credit but it was not wrongly taken. At the time of taking credit it was correctly taken on outdoor Catering Service which is an admissible input service. However, subsequently on the basis of the Judgment in the case of Ultratech Cement Ltd. - MANU/MH/1408/2010 : 2010 (20) STR 577 (Bom.) it was settled that the service charges contributed by the employee, Cenvat credit to that extent will not be admissible to the assessee. Therefore, after this judgment only the issue was settled therefore, at the time of taking credit it was correctly taken hence, interest and penalty is not chargeable. He placed reliance on the following judgments:
• GF Toll Road Pvt. Ltd. Vs. Commissioner of Central Tax & GST, Thane-MANU/CM/0038/2020 : 2020 (3) TMI 849-CESTAT Mumbai
• Castrol India Ltd. Vs. CCE, Raigad-2015 (9) TMI 1335-CESTAT Mumbai
• ITC Ltd. Vs. Commissioner of GST & CE-2019 (7) TMI 164 - CESTAT Chennai
3. On the other hand Shri Vinod Lukose, Learned Superintendent (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. He further submits that the very issue of leviability of interest on Cenvat credit taken has been decided by the Hon'ble Supreme Court in the case of Ind Swift Laboratories Ltd. MANU/SC/0140/2011 : 2011 (265) ELT 3 (SC). Therefore with the judgment of the Apex Court all the judgment cited by the Learned Counsel are distinguishable. He placed reliance on the following judgments:
• Ind Swift Laboratories Ltd. - MANU/SC/0140/2011 : 2011 (265) ELT 3 (SC)
• Ultra tech Cement-MANU/MH/1408/2010 : 2010 (920) STR 577 (Bom)
• Wipro Ltd. - MANU/CB/0216/2018 : 2018 (363) ELT 1111 (Tri-LB)
• Atul Ltd. -MANU/CS/0045/2017 : 2017 (358) ELT 825 (Tri-Abad)
• Neminath Fabrics - MANU/GJ/0249/2010 : 2010 (265) ........