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TMI Blog2014 (10) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... ER Per: Mr. M.V. Ravindran; This appeal is directed against Order-in-Appeal No.VAD-EXCUS-001-APP-460-13-14, dt. 21.10.2013. 2. Relevant facts that arises for consideration are during the course of audit of the records maintained by the appellant it was noticed that during 2009-10, they had wrongly availed Cenvat Credit of capital goods viz. 'parts of oxygen plant' and 'different valves' as inpu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to be recovered from them. Accordingly, a show cause notice dt. 22.06.2012 was issued to the appellant proposing (i) to disallow the Cenvat Credit amounting to Rs. 2,35,594/- for the period from 28.08.2009 to 31.03.2010 under Rule 4(2)(b) of Cenvat Credit Rules, 2004, (ii) to recover interest at appropriate rate on the said amount of Rs. 2,35,594/- for the period from 28.08.2009 to 31.03.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant and rejected the appeal. 4. Heard both sides and perused the records. 5. On perusal of the records, it transpires that the appellant has availed 100% of the Cenvat Credit on capital goods in the first financial year whereas they are eligible to avail only 50% of the central excise duty paid on such capital goods. It is the case of the revenue that by availing the entire credit in the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the same year instead of next year needs to be condoned. At the same time, the appellant is required to pay appropriate interest on the amount of such credit availed by him in the same financial year. On a specific query from the bench, it was pointed that the appellant has already paid the appropriate interest on the excess availed Cenvat Credit. Ld. Departmental Representative does not dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese capital goods may be consumables. Since there is no malafide that could be attributed to such availment of credit nor does the records reveal anything to hold a view against appellant, I am of the view that the penalty imposed on the appellant is unwarranted and needs to be set aside. 10. The appeal is disposed of by holding that the interest liability which is paid by the appellant is correc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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