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TMI Blog2015 (10) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 11A (2). Consequently, in my considered view, the penalty under Section 11AC cannot be imposed in the present case. I, therefore, set aside the penalty imposed under Section 11AC read with Rule 15 of the Cenvat Credit Rules, 2004 - interest is chargeable from the date of credit taken in the cenvat account by the appellant irrespective of the fact that the said credit was not utilized. Therefore, the interest under Section 11AB demanded by the lower authority and upheld by the Commissioner (Appeals) is maintained. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... s well as penalty was not warranted. He placed reliance on following judgments:- i) U.P. State Sugar Corporation Ltd. vs. CCE, Meerut-I reported in 2008 (230) ELT 532 (Tri.-Del.); ii) CCE, Ghaziabad vs. Ashoka Metal Décor(P) Ltd. reported in 2011 (21) STR 469 (All.); iii) CCE, Meerut-II vs. Rana Sugar Ltd. reported in 2010 (253) ELT 366 (All.), and iv) CCE&ST, LTU, Bangalore vs. Bill Forge Pvt. Ltd. reported in 2012 (279) ELT 209 (Kar.). 4. On the other hand, Shri V.K. Shastri, learned Assistant Commissioner (AR), appearing on behalf o the Revenue reiterates the findings of the impugned order. He submits that the appellant had taken inadmissible credit and suppressed the fact of the same from the department. He submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (10) of section 11A shall also be liable to pay a penalty equal to the duty so determined; (b) where details of any transaction available in the specified records reveal that any duty of excise has not been levied or paid or short-levied or short-paid or erroneously refunded as referred to in sub-section (5) of section 11 A, the person who is liable to pay duty as determined under sub-section (10) of section 11A shall also be liable to pay a penalty equal to fifty per cent of the duty so determined; (c) where any duty as determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty is payable under this Act shall be counted from the date of the order of the appellate authority in respect of such increased amount." 6. From the above section, it is clear that in cases where the duty is determined under Section 11A(2), the penalty under Section 11AC can be imposed. In the present case there was neither any show cause notice nor any adjudication order in respect of payment of cenvat amount of ₹ 4,38,508/- by the appellant. Therefore, this amount has not been determined under Section 11A (2). Consequently, in my considered view, the penalty under Section 11AC cannot be imposed in the present case. I, therefore, set aside the penalty of ₹ 4,38,508/- imposed under Section 11AC read with Rule 15 of the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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