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TMI Blog2011 (8) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... 18-319/2011-WZB/C-IV(SMB) - Dated:- 4-8-2011 - Shri S.K. Gaule, J. REPRESENTED BY : Shri T.C. Nair, Advocate, for the Appellant. Shri Sanjay Kalra, JDR, for the Respondent. [Order]. Heard both sides. 2. The applicant/appellant filed these applications for waiver of predeposit of equal amount of penalty imposed under Section 11AC of CEA, 1944 arising out of O-I-A No. YDB/168 169/2010/MII/2010, dated 29-3-2010 whereby Commissioner (Appeals) has upheld the lower adjudicating authority s orders. Considering the facts and circumstances of the case I find that the appeals itself can be decided at this stage. After waiving the requirement of pre-deposit, I take up the appeals for disposal. The issue involved in this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to evade payment of duty. The contention is that the appellant is PSU, and will not gain anything by suppressing the facts with an intention to evade payment of duty. The contention of the appellant that they did not have any intention to evade payment of duty. As regards the inadmissible credit amounting to Rs. 161806/- taken on account of input short received, excess credit than the duty paid input and CENVAT credit on the basis of extra copy of the invoice is not due to intention to evade payment of duty and is only a bona fide mistake, at best it can be termed as procedural infringement and not misdeclaration or suppression of facts with intention to evade payment of duty. So far as the CENVAT credit amounting to Rs. 1,54,711/- availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d interest voluntarily on being pointed out during the course of audit and that they have availed inadmissible credit. The above facts are not in dispute. There was no determination of duty thereafter. The lower adjudicating authority in the case has found that the appellant could not have reversed the inadmissible CENVAT credit after following the correct position as per Central Excise Act, 1944 and not waited for someone to point out the mistake and he came to the conclusion that in this case where they had intention to evade the Central Excise duty. So far as the CENVAT credit amount of Rs. 161806/- input service received by them before 10-9-2004, undisputedly, the appellant has reversed the CENVAT credit along with interest as soon as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mills (supra) held that application of Section 11AC would depend on the existence of otherwise of the condition expressly stated in the section. 8. Further Hon ble High Court in the case of Geneva Fine Punch while deciding the Revenue s appeal held that :- The Tribunal in the instant case on a careful consideration of the material on record has held firstly that there is no determination of duty. Secondly, the aforesaid requirement i.e. the cause of evasion of duty is not mentioned in the show-cause notice. Further that entire duty and interest was paid voluntarily on being pointed out. It held that no case for imposing the penalty is made out. The Commissioner was in total error in passing the order and imposing the penalty. Under the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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