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TMI Blog2017 (5) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... ersed before utilisation during the disputed period - the Commissioner(Appeals) has rightly set aside the demand of interest. Penalties - Held that: - The issue whether the appellant is eligible for credit on the broadcasting service prior to 01/05/2006 as well as after an interpretational issue - When the assessee has reversed the credit before utilisation, the judgment is in case of Bill Forge (P) Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT] will apply and the interest and penalty are not sustainable - penalties set aside. Appeal dismissed - decided against Revenue. - ST/1406/2010, ST/907/2011 - A/30538-30539/2017 - Dated:- 10-4-2017 - Ms. Sulekha Beevi, C.S., Member (Judicial) Shri R. Muralidhar, Advocate for the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 641/- along with interest and also proposing to impose penalty. After due process of law, the original authority confirmed the demand along with interest and also imposed equal penalty. In appeal, the Commissioner(Appeals) upheld the demand of service tax but however set aside the demand of interest and also the penalty imposed. Hence the present appeals filed by the assessee as well as the department. 3. On behalf of the assessee, the learned counsel Shri R. Muralidhar submitted that the assessee is not contesting the liability of tax / irregular availment of credit to the tune of ₹ 18,77,641/- and therefore the challenge in the appeal ST/907/2011 is withdrawn by the assessee. He submitted that the Department has filed appeal No.S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessee. He relied upon the judgment in the case of Kaalmans Plastics Pvt. Ltd. Vs. CC,CE ST, Hyderabad-IV where the Tribunal vide Final order No.A/30988/2016 dt. 18/10/2016 had applied the judgment in the case of M/s. bill forge (P) Ltd. (supra) to set aside the interest and penalty when the irregularly availed credit has been reversed before utilisation. 4. The learned AR Shri Nagaraj Naik reiterated the grounds of appeal filed by the Department. He submitted that the assessee having now admitted the liability for the irregularly availed credit is liable to pay interest as well as the penalty imposed. He argued that the commissioner(appeals) has erred in setting aside the interest and penalty. 5. I have the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertaining to the period 10/04 to 05/06 can be treated as remaining unutilised. There is a plethora of judicial pronouncements holding that interest is not required to be paid when credit was taken wrongly but not utilised. In this regard, it would be pertinent to refer to the judgment of the Hon ble High court of Punjab and Haryana in the case of M/s. Ind-Swift Laboratories Ltd. [2009(240) ELT 328 (P H)], the relevant extracts of which are as follows:- 11. Reliance of respondents on Rule 14 of the Credit Rules that interest under Section 11AB of the Act is payable even if CENVAT credit has been taken. In our view, said clause has to be read down to mean that where CENVAT credit has been taken and utilized wrongly, interest should be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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