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TMI Blog2010 (8) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. As soon as the omission was pointed out, Shri Ajay Patel, Authorised Signatory admitted the lapse and reversed the cenvat credit, Subsequently interest was also paid. Thereafter proceedings were initiated and penalty has been imposed on the first appellant equal to the cenvat credit wrongly taken and the penalty of Rs. 10,000/- has been imposed on the second appellant Shri Ajay Patel, the authorized signatory of the assessee. 2. Heard both the sides. The learned consultant submitted that the findings of the central excise officers during the visit was not actually correct on facts but in reality such inputs had been received back but no entry was made in the concerned registers. Even then since the appellants could not explain and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them before the Commissioner (Appeals). He submits that penalty has been sustained on the ground that the reconciliation statement was statement only before Commissioner (Appeals) and further in one example taken up by Commissioner, it was found that the date of the dispatch of the goods by the job worker on 26-6-07 and the date of receipt by the manufacturer happens to be same and this could not be so since the job worker was located in Chandigarh. He submits that the appellants had submitted the L.R. copy and had also submitted this omissions was also a clerical one since the concerned clerk while making the entry instead of entering the receipts had made the date of chalet as the date of receipt. It was also submitted that on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n diverted in the open market or have been irretrievably lost or incapable of being received and in such a situation the manufacturer knowingly had not made appropriate entries and reversed the credit may be the intention to evade duty can be applied. In the absence of any evidence to show that there was an attempt to divert the raw materials or not to utilize the same for the purpose for which they were obtained, it cannot be said that intention to evade payment of duty has been established. Under these circumstances imposition of penalty under Section 11AC read with Rule 15(2) of Cenvat Credit Rules cannot be sustained and is accordingly set aside. Since the penalty on the appellant company has been set aside, the penalty on the authorize ..... X X X X Extracts X X X X X X X X Extracts X X X X
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