9911796707
TMI Blog2013 (7) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Act, whether maximum or not and of discretion to impose lesser amounts" - Held that:- Application of Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable, the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of Section 11A as it has been observed in UNION OF INDIA v. RAJASTHAN SPINNING & WEAVING MILLS [2009 (5) TMI 15 - SUPREME COURT OF INDIA]. - Decided in favor of assessee. - C. M. A. No. 636 of 2008 - - - Dated:- 7-6-2013 - Chitra Venkataraman And K. B. K. Vasuki,JJ. For the Appellant : Mr. K. Ravi Ananthapadmanabhan Central Govt. Stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admissible credit. However, subsequently, the assessee reversed the wrongful credit taken and paid the duty thereon. Evidently, this was before the issuance of show cause notice. Thus, though the original notice issued on 16.4.2004 proposed levy of interest under Section 11 AB of the Central Excise Act, 1944 and penalty under Rule 13(1) of the CENVAT Credit Rules, 2002, on the above facts, the Assistant Commissioner dropped the proposal on the levy of interest on penalty. On appeal by the Revenue, by virtue of the powers under Section 35E (2) of Central Excise Act, 1944, the Commissioner reversed the order of the Assistant Commissioner. He proposed the imposition of penalty under Rule 13(1) of the CENVAT Credit Rules, 2002 and interest und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from the department as to the admissibility of the claim. In terms of Rule 12 of Cenvat Credit Rules, 2002, the assessee was rightly asked to pay the interest. However, it was also an admitted fact that the assessee did not utilise the credit and reversed immediately on receipt of the intimation about the error. In the circumstances, in the absence of any other material to show the intent to cause wrongful gain as required under Section 11A of the Central Excise Act, the levy of penalty was cancelled by the Tribunal. Aggrieved by this, the present appeal by the Revenue. 5. Learned standing counsel appearing for the Revenue placed reliance on the decision reported in 2009 (238) E.L.T. 3(SC) UNION OF INDIA v. RAJASTHAN SPINNING WEAVING ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was availed on the basis what had been stated so by the department. However, subsequently, on receipt of intimation from the department in October 2003, the assesee reversed the credit immediately thereon and paid the duty. In the background of the said facts, we may look into the show cause notice issued by the adjudicating authority as well as by the Commissioner. On a reading of the show cause notice, we can safely hold that it is bereft of any details which are required to be considered for the purpose of levy of penalty under Rule 13(1) of the CENVAT Credit Rules 2002. In the absence of any specific ground alleged, we do not find any justifiable ground to disturb the order of the Tribunal. 8. Applying the law declared by the Apex Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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