9911796707
TMI Blog2009 (11) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee and asked them to pay interest thereon. It also imposed a penalty of Rs. 1,91,826/- (equal to amount of Cenvat credit) on the party under Section 11AC of the Central Excise Act, 1944. In an appeal filed by the assessee, learned Commissioner (Appeals) reduced the penalty to Rs. 25,000/- while sustaining the order of adjudication. In the present appeal of the assessee, the challenge is against the denial of Cenvat credit and also against the penalty and demand of interest. In the Revenue's appeal, the appellant wants the penalty to be enhanced. 2. After examining the records and hearing both sides, I find that the assessee had taken Cenvat credit on inputs and capital goods totaling to Rs. 1,91,826/- during the material period. On verif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, I find that the assessee has claimed the benefit of Rule 2(a)(A)(iii) of the Cenvat Credit Rules, 2004. In other words, it is contended that the capital goods in question were components, spares and accessories of the goods specified in the preceding clauses of Rule 2. The goods so specified are (a) goods falling under Chapter 82, 84, 85 and 90 of the Central Excise Tariff Schedule, and (b) pollution control equipment. In the present appeal, the assessee has not cared to specify the capital goods of which the goods in question were claimed to be components, spares or accessories. Thus, the claim of the appellant under Rule 2(a)(A)(iii) of the Cenvat Credit Rules, 2004 stands unsubstantiated. It is also seen from the records that the ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11AC is not applicable in the absence of mens-rea. I find that the show-cause notice invoked Rule 15 of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act. In any case involving wrong availment of Cenvat credit, the relevant provisions of Rule 15 can be invoked, depending on the circumstances of wrong availment of credit. Wrong availment, simpliciter, of Cenvat credit can attract sub-rule 1 of Rule 15, in which case the penalty cannot exceed the amount of duty or Rs. 2000/-, whichever is greater. Where the Cenvat credit in question is shown to have been taken or utilized wrongly on account of fraud, wilful statement, collusion or suppression of facts or any contravention of any provisions of the Central Excise A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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