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TMI Blog2017 (11) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... unts officer of assessee - Held that: - the Revenue has not been able to bring any evidence on record that he knew or he had reason to believe that the excisable goods in question were liable for confiscation under Central Excise Rules which is the only factor relevant for imposition of penalty under Rule 26 of the CER, 2002 - penalty on the Accounts Officer set aside. Appeal allowed in part. - E/25076/2013, E/25077/2013-SM - 22497-22498/2017 - Dated:- 23-10-2017 - Shri S.S Garg, Judicial Member Shri V.M. Doiphode, Advocate For the Appellant Shri N. Jagadish, Superintendent (AR) For the Respondent ORDER Per: S. S. Garg These two appeals arise from the common impugned order passed by the Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal audit party and the preventive officers have noticed the same. Therefore, a show-cause notice was issued demanding irregularly availed cenvat credit on capital goods and services, demanding central excise duty on the physical shortage of finished goods and demanding central excise duty not paid along with interest and also with a proposal to impose penalty. The original authority after following the due process of law vide Order-in-Original dated 16.03.2012 confirmed the demands under the provisions of Cenvat Credit Rules 2004 read with proviso to Section 11A(1) of the Central Excise Act along with demand of interest and also imposed equal penalty under Section 11AC of the Central Excise Act 1944 read with Rule 25 of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t credit availed on hydraulic mobile crane and hence the penalty imposed for the said violation is not tenable as they had no intention to evade duty. He also submitted that the utilization of credit of education cess and higher education cess for payment of excise duty is a bona fide procedural mistake and hence the penalty imposed for the same is not tenable. He also submitted that the place of removal for the purpose of sale under Central Excise Rules 4(2) (c) (iii) is their consignment agents warehouse situated at Bhavnagar, Gujarat and therefore they are rightly eligible for the transportation up to the place of removal. 5. On the other hand the learned AR defended the impugned order and submitted that the Commissioner (Appeals) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for credit of service tax, appellant have produced the copies of invoices raised for clearance of waste and scrap from their works at Karwar. All these invoices contain 'NOTE: ALL GOODS DELIVERED AT OUR SHIP BREAKNG YARD, LOAIDIG AND TRANSPORT ON BUYERS ACCOUNT' along with other details of an invoice required under Rule 11 of Central Excise Rules, 2002. Therefore, the appellants contention that the place or removal is premises of consignment agent at Bhavnagar is not tenable. Hence, I do not interfere with the decision of original adjudicating authority. After analyzing the entire evidence, the learned Commissioner (Appeals) did not find any force in the contention of the appellant and he has upheld the Order-in-Original. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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