2015 (7) TMI 424

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..... ation. At the outset, I would record that the interest liability needs to be discharged by the appellant as per Rule 14 of Cenvat Credit Rules, 2004. The liability arises even if the improperly availed Cenvat Credit is not utilized, as per law settled by the Supreme Court. Accordingly, I uphold the interest liability on the appellant and direct them to pay the same without 30 days, on being informed by lower authority or their own ascertainment. As regards the penalty of an amount equivalent to the confirmed demand, I find that there is no dispute as to the fact, that the employee of the appellant company was involved in fraudulent act for his personal gain. The act of the individual employee in availing improper Cenvat Credit cannot be .....

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..... al. The first appellate authority did not accept the contentions and upheld the Order-in-Original. 3. Learned Advocate, appearing on behalf of appellant, submitted that the wrong availment of Cenvat Credit was due to fraud of an employee of the appellant. He would submit that the appellant has lodged a FIR against the said employee and issue is pending. He would submit that they have not paid the interest only for the reason that the Cenvat Credit wrongly availed, was not utilized. He would submit that the penalty is not to be imposed as there was no intention to avail wrong credit by the company. 4. Learned departmental Representative on the other hand could draw my attention to the findings on the fact by the lower authority. He wou .....

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..... them to pay the same without 30 days, on being informed by lower authority or their own ascertainment. 8. As regards the penalty of an amount equivalent to the confirmed demand, I find that there is no dispute as to the fact, that the employee of the appellant company was involved in fraudulent act for his personal gain. The act of the individual employee in availing improper Cenvat Credit cannot be attributed to appellant as a mala-fide act, as the act of fraud admittedly is not authorized and can never be authorized by the management of the appellant company. In my considered view, equal penalty imposed is unwarranted. In view of the foregoing, in the facts and circumstances in this case, I set aside the equal penalty imposed on the ap .....

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