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TMI Blog2016 (6) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... ant shows the debit entry in their RG 23A Part-II account and also shown the quantity of fabrics removed in their RG 23A Part-II account, the same has been reflected in the ER-1 Return. Therefore, in the absence of any specific allegation in the show cause notice and the disclosure of entire fact in the statutory record does not show suppression of fact on the part of the appellant. Thus the penalty under Section 11AC/Rule 15(2) is not imposable on the appellant, however there is no doubt that the appellant have contravened the provision. Therefore the penalty under Section 11A is set aside and the demand of Cenvat Credit, interest and penalty under Rule 27 are maintained. The appeal is allowed in the above terms. - Appeal No. E/1348/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of applying for the transfer of Credit, the application was rejected. Thereafter, the appellant filed a refund claim on 20.12.2004 for ₹ 5,62,354/- the said refund claim was rejected on time bar as per the RG 23A Part-II and ER-1 Returns submitted to the Range Office as on 31.7.2004, the closing balance of the quantity of inputs was shown as NIL in the Input Stock Register and which has been continued to be shown on nil till 24.3.2005. The appellant purchased 184904 L. meters. of fabrics and recorded in their Input Stock Register, maintained in RG.23A Part-I register and submitted to the Range Office with the ER-1 of March 2005, there was no Cenvat duty involved and no Cenvat duty paid at the time of purchase of the said in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble recovery of the same amount. However, the appellant is not contesting the demand as in addition to their debit entry in their Cenvat account while removing the non-excisable goods also paid the same amount in cash along with interest. The appellant is only contesting the penalty under Rule 15(2) of Cenvat Credit Rules. He submits that the show cause notice was issued within the period of 1 year on the basis of their records such as RG 23 A Part-I II and ER.1 Returns submitted to the department. He submits that the removal of the fabric on which the Cenvat Credit was utilized for payment has been declared in the Cenvat account as well as in the ER.1 Return, from these records only, the Department has issued the show cause notice, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of one year is not relevant, the penalty provision under Section 11AC is independent proviso to Section 11AC(1) of the Act. Therefore, if it is established that there is a suppression of fact, mis-delcaration, fraud, and collusion etc. even during the normal period of one year penalty under Section 11AC of the Act can be imposed. He further submits that though in the show cause notice there is no specific mention about Sub-rule(2) of Rule 15 of the Cenvat Credit Rules, but only for this reason show cause notice will not stand vitiated. In the Hon ble Supreme Court judgement in the case of J.K. Steel Ltd. Vs. Union of India 1978 (2) E.L.T. J355 (S.C.)It was held that wrong mention or non-mention or Rule or Section will not vitiate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of any specific allegation in the show cause notice and the disclosure of entire fact in the statutory record does not show suppression of fact on the part of the appellant. The Honble Supreme Court in the above cited judgment held that for invoking a penal provision under Section 11AC of the Act, the specific ingredients contained in such Section must be shown in the show cause notice, therefore, merely mentioning the Section alone will not help the department to penalize an assessee. As per the above facts and circumstances, I find that the penalty under Section 11AC/Rule 15(2) is not imposable on the appellant, however there is no doubt that the appellant have contravened the provision. Therefore the penalty under Section 11A is set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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