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TMI Blog2009 (12) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... ld to be a case of mis-statement, fraud, suppression etc. In any case, as argued by the learned Counsel, Rule 15(2) clearly applies in respect of cases where credit has been taken or utilized wrongly whereas this was a case of contravention of Rule 3(5) of the Cenvat Credit Rules, 2004. In my considered view, such contravention would attract penal provisions not under Rule 15(2) but under the second part of Rule 15(1) which applies to contravention of any of the provisions of the Rules in respect of any input or capital goods. A contravention of Rule 15(1) attracts both confiscation and penalty. - E/646/2007 - 1869/2009 - Dated:- 4-12-2009 - Dr. Chittaranjan Satapathy, Member (T) Shri N. Viswanathan, Advocate, for the Appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal's order and remitted back the case for decision by the Tribunal to reconsider the issue in the light of Hon'ble Supreme Court's decisions in the case of Union of India v. Dharamendra Textile Processors - 2008 (231) E.L.T. 3 (S.C.) = (2008) 306 ITR 277 and CCE, Pune v. SKF - 2009 (239) E.L.T. 385 (S.C.). 4. The learned Counsel for the appellants states that the order passed by the Hon'ble High Court is an ex parte order as the appellants were not represented. He further states that there is a finding in the Tribunal's order that Section 11AC of the Central Excise Act, 1944 does not apply to demand of Cenvat credit and the Department had not challenged this finding before the High Court. He argues that the appellants were required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strictly applicable. However, the appellants are not disputing the demand which they have honoured and re-credit of the same has been taken by them. However, they are challenging application of Rule 15(2) which allows invocation of Section 11AC of the Act as the present case is not a case of taking credit wrongly or utilizing the same wrongly much less on account of fraud, suppression etc. 5. Shri V.V. Hariharan, learned Jt. CDR appearing on behalf of the Department states that in this case the demand has been raised under proviso to Section 11A invoking the larger period and the appellants have not challenged the duty demand, hence automatically the equal penalty provision under Section 11AC is attracted in this case. 6. After hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants. This rule, however, has a limit on the penalty which is the duty on the excisable goods in respect of which any contravention has been committed or Rs. 10,000/- whichever is greater. As such, I determine a penalty of Rs. 10,000/- (Rupees ten thousand only) against the appellants for the contravention of Rule 3(5) for not having paid the amount equal to the credit taken on the capital goods which were removed to the job worker and were not received within 180 days. 7. In effect, the appeal of the appellants is partly allowed effectively reducing the penalty of Rs. One lakh imposed by the lower appellate authority to Rs. 10,000/- (Rupees ten thousand only) as indicated above. (Dictated and pronounced in open court) - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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