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TMI Blog2016 (2) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... ra, the interest was dropped and once the interest part was dropped by the Commissioner (Appeals) and there are no allegations of suppression and no categorical finding on the requirement of Section 11AC, then in my considered opinion, the imposition of penalty by the respondent is wrong and illegal. Therefore, set aside impugned order and allow the appeal. - Decided in favour of assessee - APPEAL No. E/633/11-Mum - A/85315/16/SMB - Dated:- 12-1-2016 - MR. S.S. GARG, MEMBER (JUDICIAL) For the Petitioner : Ms. Anjali Hirawat, Advocate For the Respondent : Shri S.V. Nair, Assistant Commissioner (AR) ORDER This appeal is directed against order-in-appeal No. YDB/45/RGD/2011 dated 21.1.2011 passed by Commissioner of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed by them. Subsequently, by the order-in-original, the demand was confirmed along with interest and penalty. Thereafter the appellant has filed appeal before the Commissioner (Appeals) who set aside the interest and confirmed equal penalty on the appellant. Hence this appeal by the appellant against the confirmation of the penalty imposed by the order-in-appeal. 3. The learned counsel for the appellant submitted that in the grounds of appeal, he has contested the entire demand on merit, but since the appellant has already reversed the cenvat credit, therefore, confining her argument only to the equal penalty imposed on the appellant under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AC. Penalty for short-levy or non-levy of duty in certain cases. Where any duty of excise has not been levied or paid or short-levied or short paid or erroneously refunded, by reason of fraud or collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made there under with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (2) of section 11A shall also be liable to pay a penalty equal to the duty so determined; . . . . The learned counsel further submitted that the respondent cannot go beyond the allegations in the show cause notice and a perusal of the show cause notice clearly shows that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder-in-original and the impugned order, I find that there is no allegation regarding fraud, wilful misstatement, suppression of fact which are required as per Rule 15(2) read with Section 11AC of the Central Excise Act to impose equal amount of penalty. Moreover, once the learned Commissioner (Appeals) has dropped the interest on the ground that the cenvat credit was availed but not utilized by the appellant and, therefore, by relying upon the judgment of the Hon ble High Court of Punjab Haryana in the case of Ind-Swift Laboratories Ltd. cited supra, the interest was dropped and once the interest part was dropped by the Commissioner (Appeals) and there are no allegations of suppression and no categorical finding on the ingredients of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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