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TMI Blog2015 (11) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... A,1944 and Rule 15 of CCR,2004. The Ld. Commissioner(Appeals) observation that had the department not pointed out the discrepancy the deficit amount would not have been paid, is an inference not supported by allegation in the notice nor any evidence leading to the conclusion that the Appellant had suppressed the facts. In these circumstances, penalty imposed under Section 11AC of the Central Excise Act read with Rule 15 of CCR,2004 is unsustainable. Consequently, the impugned Order-in-Appeal is set aside - Decide din favour of assessee. - Excise Appeal No. E/393/2011 - Final Order No. A/75430/KOL/2015 - Dated:- 14-8-2015 - D M Misra, Member (J) For the Petitioner : Sri S P Siddhanta, Consultant For the Respondent : Sri M Chatto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r argument and contested the imposition of penalty only. Therefore, challenging the correctness of demand and interest at this stage, in my view, is not permissible. 7. On the issue of penalty, the Ld. Consultant submitted that the applicant had by mistake availed CENVAT Credit on inputs utilized in the manufacture of biscuits which were dutiable and also exempted where ever the retail sale price was below ₹ 50/-. Consequently, they were required to pay 10% of the price of biscuits i.e. ₹ 68,605/- as per rule 6(3) of CENVAT Credit Rules, 2004. The second issue relates to non-reversal of CENVAT Credit of ₹ 1,63,499/- and education cess of ₹ 3,270/- when they had opted out of MODVAT Scheme at the beginning of the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances under which the appellant could be said to have suppressed the facts warranting imposition of penalty under Section 11AC of CEA,1944 and Rule 15 of CCR,2004. The Ld. Commissioner(Appeals) observation that had the department not pointed out the discrepancy the deficit amount would not have been paid, is an inference not supported by allegation in the notice nor any evidence leading to the conclusion that the Appellant had suppressed the facts. In these circumstances, penalty imposed under Section 11AC of the Central Excise Act read with Rule 15 of CCR,2004 is unsustainable. Consequently, the impugned Order-in-Appeal is set aside to the extent of confirmation of penalty. Appeal disposed off as above. ( Pronounced in the court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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