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TMI Blog2009 (11) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... in the jurisdiction of the same Central Excise Range and also there is no dispute that before shifting their factory, the appellant vide their letter dated 23-4-2004 addressed to the jurisdictional Asstt. Commissioner of Central Excise had informed him about their intention to shift their factory to new location. On shifting to the new location, the appellant as per the provisions of Rule 8(2) of Cenvat Credit Rules, 2002 transferred the balance of the credit of Rs. 5,56,288/- to the new R.G. 23A Part II Register started for the new location. They also received fresh duty paid inputs at the new location and took Cenvat credit amounting to Rs. 31,50,654/- during the period from 24-4-2004 to 13-7-2005. The Department, taking the view that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proved and hence there is no question of recovery of Cenvat credit under Rule 12 of Cenvat Credit Rules, 2002, but the appellant have contravened the provisions of Rule 9 of the Central Excise Rules. The Appellant have filed this appeal challenging the upholding of penalty to the extent of Rs. one lakh on them under Rule 25 of Central Excise Rules for alleged violation of the provisions of Rule 9(1) and 9(3). 2. Heard both the sides. 2.1 Shri Atul Gupta, Co. Secretary, learned Counsel for the appellant, pleaded that when Commissioner (Appeals) has given a finding that there was no irregular utilization or availment of Cenvat credit and hence there is no question of recovery of the same and on this ground set aside the demand of Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application to the jurisdictional Asstt. Commissioner in the prescribed form notifying the change of address and got the necessary amendment in the certificate done, that since the appellant transferred the credit available to them at the old location and started taking Cenvat credit on the fresh receipt of the inputs without amendment of the registration certificate, they have contravened the provisions of the Notification No. 35/2001-C.E. (N.T.), dated 26-6-2001 issued by the Board under Rule 9 and hence penalty on them is justified. 3. I have carefully considered the submissions from both the sides and perused the records. There is no dispute about the fact that both the locations old as well as new fall in the same range and the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the factory. The Board has issued a Notification No. 35/01 dated 6-6-01 under Rule 9 prescribing the conditions and procedure for registration. On going through the notification, I find that none of the conditions prescribed in the notification has been contravened. Moreover, I find force in the appellant s contention that no penalty can be imposed under Rule 25(1) as neither the appellants are covered under clause (a), (b) or (c) of sub-rule(1) of Rule 25 nor they are covered under clause (d) of sub-rule (1) of this Rule as they cannot be said to have contravened any provisions of Central Excise Rules with intention to evade the payment of duty more so when entire Cenvat credit demand had been set aside by the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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