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TMI Blog2009 (9) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty paying documents for which proper account is maintained and proper return is also filed as per the provisions of Central Excise Act, 1944. 2. In the month of August, 2006, an audit was conducted wherein the following objections were raised:- (a) The appellants had the practice of identifying the stores, which are not useful/unfit for consumption at their plant and such stocks were written off in their books of account. At the time of writing off the stock balance from the financial records, the appellants should have also reversed the Cenvat credit on the said cancelled bins/written off stocks. The appellants in spite of the inputs lying in the factory and in spite of many inputs being those on which Cenvat credit was not availed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not for demand of duty under Section 11A. It means the assessee have been issued show cause notice for imposition of penalty and payment of interest rightly. As they have not paid the interest amount in spite of mistake pointed out by the CERA auditors, I feel that they have deliberately not paid the interest to evade the Government revenue, hence they are liable to pay the equal penalty of the payment/reversal of inadmissible Cenvat credit along with the interest as applicable" 5. Aggrieved by the same, the appellants preferred an appeal before the Commissioner (Appeals). The Commissioner (Appeals) rejected the appeal and hold that "the appellants were required to reverse the Cenvat credit and the insertion of sub-rule (5B) in Rule 3 of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 3 of Cenvat Credit Rules, 2004, whereby specific provisions for reversing the equivalent amount of Cenvat credit was introduced if the value of inputs or capital goods were written off fully from the books of account. The said specific provisions were introduced w.e.f. 11-5-2007 and they are not applicable for the period prior to 11-5-2007. When there is no requirement of reversal of Cenvat credit and the amount was debited as a matter of utmost precaution to avoid any dispute. Hence, there is no liability of any interest and there is no suppression, wilful misstatement on the part of the appellants, the penalty under Section 11AC also not imposable in the absence of any mens rea. 7. He further placed reliance on the following decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and equivalent amount of penalty also. 9. He further placed reliance on Asiatic Gases Ltd. v. CCE, Mumbai order No. A/154/2009/SMB dated 25-3-2009 and UOI v. Rajasthan Spinning & Weaving Mills, 2009 (238) E.L.T. 3 (S.C.) = 2009-TIOL-63-SC-CX and CCE v. Monarch Pipes Ltd., 2009 (235) E.L.T. A87 (S.C.). 10. Heard. 11. On careful examination of the submissions made by both the parties and reliance placed before me, I am of the view that the appellant's case is squarely covered by the reliance placed by the ld. Advocate in the case of Bharat Heavy Electricals Ltd. (supra), Audco India Ltd. (supra) and Tecumseh Products India Pvt. Ltd. (supra) and the reliance placed by the ld. SDR in the case of Asiatic Gases Ltd (supra) is not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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