9911796707
Advanced Search 
TMI Blog2018 (5) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... duty at the rate of 12%. So they are manufacturing both dutiable as well as exempted goods. 2. During the audit of the unit of the appellant by the team of internal audit branch, it was observed that the appellant have taken and utilized Cenvat Credit of Rs. 5,02,446/- during the years 2009-10 and 2010-11 on packing material used in the manufacturing of exempted goods (Non dutiable goods). When it was pointed out to the appellant they immediately deposited Rs. 5,02,446/- along with interest of Rs. 2,25,697/- (at applicable rate) on 07.03.2013 3. The Department issued the Show Cause Notice dated 13.10.2014 to the appellant as to why:- (i) The duty amounting to Rs. 5,02,446/- (Rs. Five lacks two thousand four hundred and forty six only) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I have heard the parties and perused the records 6. The ld. Advocate for the appellant very fairly submitted that they are not challenging the confirmation of demand and interest in the impugned order. They are only challenging the confirmation of penalty. He further submitted that the penalty can be imposed only if there was some fraud, collusion, willful mis-statement or suppression on the part of the appellant. He stated that from time to time the appellant had filed ER-1 Returns before the authorities concerned. But nobody pointed any of regularity in the same and as soon as it has been pointed out to them that they have wrongly availed the Cenvat Credit, they immediately reverse the same. The ld. Advocate also submitted that the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (2) of Section 11A, shall also be liable to pay a penalty equal to the duty so determined." This provision thus provides for a penalty wherein duty of excise has not been levied, paid or short paid or erroneously rejected by reasons of fraud, collusion or any willful misstatement or suppression of facts, or contravention of any of the provisions of the Act or rules with intent to evade payment of duty. In such a case person liable to pay duty shall also be liable to pay a penalty equal to duty so determined. Thus if any of the circumstances referred to in Section 11AC are established, the person liable to pay duty would also be liable to pay a penalty equal to the duty so determined. 9. In a similar matter where the assessee had wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udit pointed out the fact to the assessee that they were not entitled to avail the credit, the appellant instead of entering into litigation, accepted the same and reversed the same immediately. Admittedly penal provisions are invokable, once there is a mala fide on the part of the assessee. In the present case, the show cause notice does not attribute any mala fide intention to the appellant so as to invoke the penal provisions of Section 11AC. The arguments of the learned DR is that since 11AC stand invoked that itself is sufficient to attribute mala fide to the appellant, cannot be appreciated inasmuch as there has to be element supported by evidence to invoke the provisions of Section 11AC itself. In the absence of any such element, I d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
