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TMI Blog2014 (12) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... of equal amount imposed on the appellant is, therefore, not sustainable and is liable to be set aside. Levy of penalty - Held that:- appellant themselves had presented their records to the Audit Officers in course of which the above mentioned short-payment or non-payment of duty/service tax had been detected, it cannot be said that the above mentioned short-payment/non-payment of duty/service tax was deliberate. In fact the disputed amounts had been paid before the issue of SCN and therefore the same have to be treated as the payment of central excise duty/service tax made under Section 11 A(2B) of the Central Excise Act, 1944/section 73(3) of the Finance Act, 1994 and since the entire disputed amount of duty/service tax has been paid a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay an amount equal to 5% /10% of the value of the goods in terms of the provisions of Rule 6(3) of the Cenvat Credit Rules, in respect of clearances of exempted final products. Short payment of duty of ₹ 95,419/- is on this basis. (b) The appellant have not paid duty amounting to ₹ 15.468/- on scrap arising out of manufacture of parts of medical instruments, which was not exempt from duty. (c ) In respect of the clearances of final products, for captive consumption, there was short payment of duty, to the tune of ₹ 1,32,268/- as the duty has not been paid on the price at which the same are sold to the independent buyers. (d) Non-payment of service tax amounting to ₹ 3,75,891 on the commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above mentioned five demands of central excise duty/Cenvat Credit/service tax were confirmed along with interest and penalty of equal amount was imposed. On appeal being filed to the Commissioner (Appeals), the above order of the Addl. Commissioner was upheld. Against this order of the Commissioner (Appeals), this appeal has been filed. 5. Heard both sides. 6. Shri R.P. Jindal, Advocate, ld. Counsel for the appellant, pleaded that the entire amount of duty/Cenvat Credit demand/service tax has been paid even before the issue of show cause notice along with interest, that except for Cenvat Credit demand of ₹ 2,41,060/- in respect of the capital goods, he is not contesting the demands in respect of the remaining amounts, and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire consignment covered under the invoice is received in the factory in original packed condition and the duplicate copy of the invoice is endorsed by their Head Office to the effect that consignment covered By the invoice is transferred to the manufacturing unit, that all the invoices under which the goods have been received in the Unit-II bears the endorsement, that the packed machines have been sent to Unit-II, and that in view of this denial of Cenvat Credit of ₹ 2,41,060/- is not correct and imposition of penalty on this ground is not correct. 6. Shri M.S. Negi, ld. Departmental Representative defended the impugned order by reiterating the findings of the Commissioner (Appeals). 7. I have considered the submissions fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant themselves had presented their records to the audit officer. In view of the fact that the appellant themselves had presented their records to the Audit Officers in course of which the above mentioned short-payment or non-payment of duty/service tax had been detected, it cannot be said that the above mentioned short-payment/non-payment of duty/service tax was deliberate. In fact the disputed amounts had been paid before the issue of SCN and therefore the same have to be treated as the payment of central excise duty/service tax made under Section 11 A(2B) of the Central Excise Act, 1944/section 73(3) of the Finance Act, 1994 and since the entire disputed amount of duty/service tax has been paid along with interest, even the sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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