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TMI Blog2013 (2) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) TMI 15 - SUPREME COURT OF INDIA] As in the present case, no suppression or misstatement or mis-declaration on the part of the appellant,there is no suppression of fact as the entire amount of CENVAT Credit received and utilized both for traded as well as manufactured goods were duly accounted for in the CENVAT Credit register and the CENVAT Credit availed on the input services, were duly reflected in their monthly returns filed with the department. T brought out in the impugned Orders of the lower authorities, therefore penalty under section 11AC cannot be justified - in favour of assessee. - Appeal No.Ex.Ap.890/2011 - A-866/KOL/2012 - Dated:- 4-12-2012 - Dr. D.M. Misra, J. Shri Pulak Kr.Saha, C.A. for the Appellant (s) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volving a very insignificant quantity of electric meters, they have taken CENVAT Credit on the input services namely, G.T.A. and Business Auxiliary Service, utilized for the traded goods as well as for the manufactured goods. It was a bona fide mistake, as they were not aware of the provisions that no CENVAT Credit on input services used for traded goods were admissible to them. However, as soon as the mistake was pointed out by the visiting C.E.R.A. Audit, the entire credit was reversed on 10.07.2007 and also they had paid the interest on the said CENVAT credit. Ld.Chartered Accountant contended that before invoking section 11AC, it is necessary that the duty should first be determined under section 11A(2) of Central Excise Act, 1944, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said rules read with section 11A of the Central Excise Act, 1944, along with interest at the appropriate rate under Rule 15(2) of the said Rules. However, he has fairly accepted that though while directing the Appellant to show cause, the said proposition had not been mentioned in the Notice. Further, he has submitted that CENVAT Credit being reversed for the period from June 2005 to May 2007, which was beyond the normal period, itself, shows that there had been an intention of wrong availment of CENVAT credit during the said period. Ld.A.R. further submitted that the Appellant could not produce any contrary evidence before the Commissioner(Appeals) rebutting the said allegation in the Notice. Further, he has submitted that the case laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1944. I find that the show cause notice does not spell out the circumstances or facts which were suppressed and how the appellant had availed the said admissible CENVAT Credit with mala fide intention. I also find that the adjudicating authority as well as the appellate authority did not discuss the facts which were suppressed or mis-declared or mis-stated by the appellant, except observing that had the Audit not pointed out the said wrong credit, the amount would not have been recovered from the Appellant. I find this reasoning standing alone cannot be accepted as a ground for confirming suppression, mis-statement or mis-declaration of facts by the appellant, in availing the inadmissible CENVAT Credit on the input services used in the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid requirement i.e. the cause of evasion of duty is not mentioned in the show cause notice. Further that the 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 these circumstances, we do not find any infirmity in the order passed by the Tribunal No substantial question of law involved in this appeal that arises for consideration. Hence, the appeal is dismissed. 8. On a plain reading of the said observation, it can safely be inferred that irrespective of the fact whether duty was paid either involving extended period or otherwise, or paid voluntarily or in pursuance to a dem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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