TMI Blog2008 (6) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... mmon issue involved in both the appeals and, therefore, they are taken up together for disposal. 2. The relevant facts of the case, in brief as per records, are that by Final Assessment Order dated 1-11-2004, the assessee was entitled to refund of Rs. 2,94,085/-. In terms of the Assessment Order, the assessee availed Credit of Rs. 2,94,085/- on 27-11-2004. During the course of audit, it was poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, 1944. The Commissioner (Appeals) modified the Adjudication Order to the extent that penalty was reduced to Rs. 25,000/-. The assessee filed appeal before this Tribunal for setting aside the penalty as well as Revenue filed appeal for enhancement of the penalty. 3. The ld. Advocate on behalf of the assessee submits that the same Asstt. Commissioner allowed the refund claim before passing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the irregularities and, therefore, penalty under Section 11AC of the Act is justified. 5. After hearing both the sides and on perusal of the records, I find that by Assessment Order dated 1-11-2004, the assessee was entitled to avail the refund of the Credit. The assessee themselves debited the Credit when pointed out by the Audit. It is seen that before passing the Adjudication Order, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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