9911796707
TMI Blog2011 (1) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The brief facts of the case are that the respondent are engaged in the manufacture of goods falling under Heading 8708 00 of the First Schedule to the Central Excise Tariff Act, 1985 and are availing CENVAT facility. The department on scrutiny of various records has found that the respondent had issued debit notes to their supplier of inputs on account of rejection of inputs against which they have availed CENVAT credit. The department initiated proceedings against the respondent. The adjudicating authority confirmed the demand of CENVAT credit of Rs. 33,955/- along with interest. The adjudicating authority also imposed penalty of equal amount under Section 11AC of the Act. Aggrieved by the same the respondent filed appeal before the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment in the case of Dharmendra Textile Processors (supra) and subsequent decision of the Supreme Court in the case of Union of India vs. Rajasthan Spinning and Weaving Mills 2009 (238) ELT 3 (SC). Therefore, the learned Commissioner (Appeals) order is not sustainable in law and the same is required to be set aside and the appeal be allowed insofar as imposition of penalty under Section 11AC is concerned. 5. The contention of the respondent is that they have filed Cross-Objection received by the Registry on 27/06/2008. The contention is that the impugned order is not correct in law as well as on facts. Their contention is that it is not correct on the part of the Commissioner (Appeals) to record a finding that they did not dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty in respect of the debit notes issued to the supplier of the goods and at no stage they have disclosed this aspect to the department. The show-cause notice was issued on the ground that the assessee has recorded the transaction by raising a debit note thereby suppressing the fact of rejection from the department. From para 4 of the Commissioner (Appeals) order, it is clear that they have not disputed the case on merits. Para 4 of the Commissioner (Appeals) order is reproduced hereunder for convenience of reference: "4. I have carefully considered the impugned Order-In-Original, grounds of appeal and submissions made during the Personal Hearing. I find that merits of the case are not disputed. The appellants have paid duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged the confirmation of demand on the basis of suppression of facts. Therefore, the mandatory penalty under Section 11AC is imposable. As regards the cross-objection filed by the respondent is concerned, I find that the same has not been filed within the time limit prescribed, therefore, the same has to be rejected as such. The Commissioner (Appeals)' order setting aside the penalty under Section 11AC is not sustainable and hence, set aside to the extent. 8.2 As regards the contention of the respondent that since they have already paid the entire amount of duty involved in the case before the issuance of the show-cause notice they are liable to pay only 25% of the duty amount as penalty in view of the judgment of the Hon'ble Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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