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TMI Blog2017 (10) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ization of such credit, if the entry is reversed, the same amounts to not taking of cenvat credit. In absence of non-utilization of wrongly availed cenvat credit, interest and penalty cannot be confirmed - appeal allowed - decided in favor of appellant. - ST/50135/2017[SM] - A/56493/2017-SM[BR] - Dated:- 6-9-2017 - MR. S.K. Mohanty, Member (Judicial) Present for the Appellant: Ms.Prema Chopra, Advocate Mr. Anurag, Advocate Present for the Respondent: Mr.Vaibhav Singhraj, D.R. ORDER Per: S.K. Mohanty Brief facts of the case are that during the disputed period 2008-09 to 2011-12, the appellant availed cenvat credit on the basis of the debit notes issued by the service provider. Since debit note is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransformers Ltd. Vs. Commissioner of C.Ex. S.T., Bhopal - 2016 (337) ELT 297 (Tri.- Del.). 3. On the other hand, the ld. D.R. appearing for the respondent reiterates the findings recorded in the impugned order and further submits that since the credit has been taken by the appellant in the books of accounts, the period between taking of such credit and subsequent reversal thereof, the appellant is liable to pay interest, since the same is compensatory in character. Thus, he submits that the liability towards interest and penalty have been rightly fastened against the appellant. 4. Heard both sides and perused the case records. 5. It is not the case of the Revenue that the wrongly availed cenvat credit was utilized by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been erroneously refunded. In view of the aforesaid judgment of the Apex Court, the question of reading the word and in place of or would not arise. It is also to be noticed that in the aforesaid Rule, the word avail is not used. The words used are taken or utilized wrongly . Further the said provision makes it clear that the interest shall be recovered in terms of Section 11A and 11B of the Act. 20. From the aforesaid discussion what emerges is that the credit of excise duty in the register maintained for the said purpose is only a book entry. It might be utilised later for payment of excise duty on the excisable product. It is entitled to use the credit at any time thereafter when making payment of excise duty on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the date of book entry, showing entitlement of Cenvat credit. Interest cannot be claimed from the date of wrong availment of CENVAT credit and that the interest would be payable from the date CENVAT credit is taken or utilized wrongly. 6. Further, I also find that this Tribunal in the case of Prism Cement (Supra), on an identical set of facts has set aside both interest and penalties confirmed in the adjudication order. 7. In view of the settled position of law that in absence of non-utilization of wrongly availed cenvat credit, interest and penalty cannot be confirmed, I am of the considered opinion that the impugned order confirming such liabilities is required to be set aside. Accordingly, after setting aside the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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