9911796707
TMI Blog2009 (11) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... alty under section 11AC of Act not imposable. - E/1546/2006 - A/719/2009-WEB/MUM/C-IV/SMB - Dated:- 26-11-2009 - Shri Ashok Jindal, Member (J) REPRESENTED BY: Ms. Padmavati Patil, Advocate, for the Appellant. Shri P.K. Agarwal, SDR, for the Respondent. [ORDER]. - The Appellant has challenged the Order of the Commissioner (Appeals) imposing penalty under Section 11AC and demanding of interest under Section 11AB, which were dropped by the Original Adjudicating Authority. 2. The brief facts of the case are that the Appellants purchased an input, i.e. Steel Rounds from M/s. ISSL and sent the same directly to job worker M/s. Sodhi Engineering for grinding and cutting. As per the agreements with the supplier, i.e. M/s. ISSL, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the Appellant, Aggrieved from the same the Appellant is before me. 5. Ms. Padmavati Patil, learned Advocate appearing on behalf of the Appellant submits that:- (a) provision of Section 11DD is not applicable to the case of the Appellant, (b) the penalty under Section 11AC is not imposable, (c) the credit itself cannot be denied, (d) the Lower Authority cannot travel beyond the allegations made in the Show Cause Notice, and (e) extended period cannot be invoked. 5.1 She argued that the credit availed by the Appellant is not deniable. To support this contention, she placed reliance on several decisions in the cases of Bharat Radiators Ltd. v. Commissioner of Central Excise, Mumbai-I 1999 (112) ELT 918 (Tri), Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd. 2009 (240) ELT 468 (Tri-Del). She further relied on Commissioner of Central Excise, Raigad v. Fibre Foils Ltd. 2009 (241) ELT 201 (Bom), wherein it was held that not only fraud or willful misstatement or collusion or suppression of facts but also intent to evade payment of duty is required for penalty under Rule 57-1(4). 5.5 She further contended that in the show-cause notice the interest has been demanded under Section HDD and the penalty was proposed to levy under Section 11AC. The provisions of Section HDD are not applicable to the Appellants, the interest is not leviable. Hence, the impugned Order is without any merits and the same is liable to be set aside. 6. On the other hand, Shri P.K. Agarwal, learned SDR has submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held in the case of Commissioner of Central Excise, Madras v. Systems and Components Pvt Ltd. 2004 (165) ELT 136 (SC). He further submitted that credit is not admissible to the Appellant, which was rightly held in the case of RPG Cables Ltd. v. Commissioner of Central Excise, Mumbai 2003 (157) ELT 273 (Tri-Del), wherein it was held that inputs having not been used in the manufacture of the final product-even not physically available after being written off credit is not admissible. 6(d) The Appellant has admitted the duty liability and when they have admitted the duty liability and the same is not alleged in the Show Cause Notice and the Appellant cannot go beyond the allegations made in the Show Cause Notice. The Appellant, at this ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
