TMI Blog2018 (11) TMI 1524X X X X Extracts X X X X X X X X Extracts X X X X ..... lant can be punished with imposition of interest for the amount which had never come to its account for utilisation. Demand not sustainable - appeal allowed - decided in favor of appellant. - Appeal No. ST/85688/2018 - A/87763/2018 - Dated:- 26-10-2018 - Dr. Suvendu Kumar Pati, Member (Judicial) Shri D.H. Nadkarni, Advocate for the appellant Shri Dilip Shinde, AC(AR) for the respondent ORDER Availment of inadmissible cenvat credit resulted in reversal of the same culminated with imposition of interest and penalty by the first adjudicating authority that attained finality in the order of Commissioner (Appeals) is the subject matter of this appeal. 2. Factual backdrop of the case, in brief is that appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can never be inferred from the factual aspect of the case and mere taking of a credit entry in the cenvat credit register does not establish fraud or collusion or wilful misstatement including suppression of fact that would entail imposition of penalty under Section 78. In citing decision of CESTAT Delhi reported in 2017 (49) STR 193 along with other decisions, he also submitted that no benefit of wrong entry in account books was taken or utilised in respect of the inadmissible credit for which he prays for setting aside of the order of Commissioner (Appeals). 4. In response, the ld. AR for the department supported the finding of the Commissioner (Appeals) and argued, with reference to decision of Tribunal, Hon'ble High Court of Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance 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 of interest for 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the first part and the second part. 7. This above observation is further fortified by the fact that the legislative 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 judgment passed by the Hon'ble Apex Court referred supra and it had amended the Rule with effect from 17.03.2012 by substituting taken or utilised wrongly with the word 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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