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TMI Blog2016 (9) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) reducing the penalty under Rule 15 read with Section 11AC ibid for the period April .2009 to February 2011, trangresses the legal provisions as applicable during that period. Hence that portion of the impugned order reducing the penalty amount of ₹ 31,11,108/- to ₹ 22,14,085/- for the period April, 2009 to February, 2011 is set aside and the order of adjudicating authority imposing penalty equal to duty demanded will stand restored. - levy of penalty restored - Decided in favor of revenue. - E/26725/2013 - Final Order No. A/30651/2016 - Dated:- 27-7-2016 - Shri Madhu Mohan Damodhar, Member (Technical) Sh. Arun Kumar, Authorised Representative for the Appellant. None for the Respondent. ORDER Brie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and were merely raised to collect expenses shared by them. These appeared to the department to be mere commercial transactions, where some common expenditure between both the group companies were shared in between and thus did not appear to qualify as 'input service as defined under Rule 2(l)(ii) of CENVAT Credit Rules, 2004. Hence, two show cause notices dated 29-12-2011 and 29-02-2012 were issued to the respondent. 2. On adjudication, the adjudicating authority vide his Adjudication Order No. 33 34/2012-Adjn (CE) ADC dated 27-03-2012, held as follows: With reference to SCN dated 29.12.2011 (period April, 2009 to February, 2011) , the adjudicating authority confirmed the demand and ordered for recovery of ₹ 31,11,10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order of Commissioner (Appeals). 5. The department was represented by Sh. Arun Kumar, Learned AR who reiterated the grounds of appeal, and also submitted as follows: i) Respondent assessee had been availing irregular CENVAT Credit of Service tax. This is not disputed in the impugned order. ii) Since the said irregular availment of credit had been done by suppression of facts from Department, provisions of section 11A (2B) of the Act would not be applicable. iii) Commissioner (Appeals) had also found that the assessee had not informed the Department regarding the availment of such credit. iv) Hence equal penalty under section 11AC is very much required to be imposed in this case. 6. None appeared for the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be counted from the date of receipt of such information of payment. Explanation 1. - Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reason of fraud, collusion or any willful 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. 9. The aforesaid provisions undoubtedly constitute a beneficial piece of legislation with the intention of reducing litigation and encouraging timely payment by the assessee of any duty short paid or short levied, etc., on his own realization or on being pointed out by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... go beyond the intention of the legislature in Explanation 1 to Section 11A (2B) ibid, and will necessarily have to uphold imposition of penalty equal to duty as mandated for such situations in Section 11AC ibid. The action of the Commissioner (Appeals) reducing the penalty under Rule 15 read with Section 11AC ibid for the period April .2009 to February 2011, trangresses the legal provisions as applicable during that period. Hence that portion of the impugned order reducing the penalty amount of ₹ 31,11,108/- to ₹ 22,14,085/- for the period April, 2009 to February, 2011 is set aside and the order of adjudicating authority imposing penalty equal to duty demanded will stand restored. 11. The impugned order is not interfe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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