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TMI Blog2017 (6) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Section 11AC of the CE Act are applicable only in respect of short- payment of duty whereas the payment under Rule 6(3)(b) of Cenvat Credit Rules is not duty but an amount - the penalty imposed on the appellant is not warranted by law - appeal allowed - decided in favor of appellant. - E/COD/379/2011 in E/3075/2011-SM - Final Order No. 20454/2017 - Dated:- 3-4-2017 - Shri S.S Garg, Judicial Member Mr. T.R. Rajesh Kumar, C.A. For the Appellant Mr. Parashiva Murthy, A.R. - For the Respondent ORDER The present appeal is directed against the impugned order dated 23.08.2011 passed by Commissioner (Appeals) wherein the Commissioner (Appeals) has rejected the appeal of the appellant and upheld the order-in-origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period covered under the impugned order is 2007-2008 and 2008-2009 and during the relevant period the said rule did not exist in statutory books and confirming the payment by invoking the provisions which did not exist at all at the relevant time is not sustainable in the eyes of law. Learned Consultant further submitted that the appellant was not aware of the applicability of Rule 6 of CENVAT Credit Rules and once the department pointed out the mistake the appellant immediately discharged the tax liability along with interest and this aspect was not appreciated in the impugned order. He further submitted that the amount demandable in terms of Rule 6(3) is neither duty nor CENVAT credit. In this regard he placed reliance on the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has observed in para 3 as under:- 3. The short question is whether the respondent is liable to pay penalty and interest on the excess amount claimed by it? The Commissioner (Appeals) as well as the Tribunal have held that provisions of Section 11AC of the Central Excise Act are inapplicable as they relate only to short payment of duty, whereas the present case relates to reversal of the excess amount claimed by the respondent in terms of Rule 6(3)(b) of the Cenvat Credit Rules. Apart from the above, a perusal of the language of Section 11AC of the Central Excise Act shows that the same would be applicable only if in case where there is an attempt to evade duty. The present case relates to reversal of amount under Rule 6(3)(b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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