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TMI Blog2005 (4) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... representative of the respondents himself admitted the shortage of the inputs caustic soda resin, HCL etc. and even reversed the Modvat credit on the date when the officers visited the factory premises and found the shortage of the inputs. Ld. Commissioner (Appeals) had wrongly dropped the recovery of Modvat credit from the respondents on those inputs on which they have earlier availed the credit. 3. On the other hand ld. Counsel has raised two legal issues. Firstly that the demand is time barred, secondly, that the demand could not be confirmed under Section 11A of the Act, as it pertains to the Modvat credit for the recovery of which Rule 57-I could only be involved. Ld. Counsel has referred to the Apex Court judgment in the case of CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. Therefore, the impugned order of the ld. Commissioner (Appeals) in this regard cannot be sustained. 5. This takes me to the legal issue raised by the ld. Counsel. It is well-settled that mere quoting of wrong provision of law will not invalidate the SCN, especially when all essential particulars/details had been provided therein and the assessee cannot be said to have been taken by surprise. In the instant case, no doubt the provisions of Section 11A had been referred for claiming the recovery of the Modvat credit amount from the respondents, instead of Rule 57-I, but I find that all other details for raising the demand had been given in the SCN. The respondents themselves admitted of having availed the Modvat credit on the short foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the finished goods by the respondents without payment of duty, has not been contested before me by the Counsel and as such the impugned order in this regard is upheld. 7. In view of the discussions made above, the impugned order-in-appeal to the extent to which it has been challenged in the present appeal is set aside and the demand of Modvat credit amount of Rs. 43,830/- is confirmed against the respondents. Regarding imposition of penalty, ld. Counsel has contended that it is not imposable under the law. But his contention cannot be accepted. The respondents had not only wrongly availed the Modvat credit on the raw-material but also cleared the finished goods in the clandestine removal without payment of duty. Therefore, the penalty imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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