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TMI Blog2016 (3) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... he credit taken if not utilized for payment of Central Excise duty, the same bears the character of a mere book entry and the interest liability cannot be confirmed against the assessee. Thus demand of interest is not proper and justified in the present case, because the cenvat credit taken by the appellant irregularly has not been utilized for clearance of final product. Section 11A of the Central Excise Act, 1944, was substituted w.e.f. 08.04.2011 by section 63 of the Finance Act, 2011. The effect of substitution is that sub-section (6) was inserted in section 11A. Since, the period involved in the case in hand is from December, 2010 to March 2011, the provisions of sub-rule (6), inserted subsequently, will not have any application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of Cenvat Credit Rules, 2004. Appeal filed against the said adjudication order was upheld by the Commissioner (Appeals) by relying on the judgment of Honble Supreme Court, in the case of UOI vs Ind Swift Laboratories Ltd. reported in 2011 (265) ELT 3 (SC). Hence, the present appeal before this Tribunal. 2. Heard the Ld. Counsel for both the sides and perused the records. 3. I find that the irregularly availed cenvat credit was reversed by the appellant upon detection of mistake by the Audit Wing of the Central Excise Department and before issuance of the SCN. It is an admitted fact that the irregularly availed cenvat credit has not been utilized by the appellant for payment of Central Excise duty. In other words, the credit taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilized for clearance of final product. 4. Section 11A of the Central Excise Act, 1944, was substituted w.e.f. 08.04.2011 by section 63 of the Finance Act, 2011. The effect of substitution is that sub-section (6) was inserted in section 11A. Since, the period involved in the case in hand is from December, 2010 to March 2011, the provisions of sub-rule (6), inserted subsequently, will not have any application for imposition of penalty. Further, the provisions of Rule 15(1) of the Cenvat Credit Rules, 2004 have not been invoked in the SCN for imposition of penalty. Thus, the penalty confirmed by both the authorities below is outside the scope and purview of SCN. Hence, the impugned order confirming the penalty on the appellant is liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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