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TMI Blog2018 (5) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... anted. In the present case the appellant had filed ER-1 return for the period in question. The appellant had clearly declared everything in their ER-1 Returns. The Show cause notice also does not attribute any malafied on the part of the appellant. Therefore, there is no fraud or mis-statement or suppressions or malafied on the part of the appellant and for the same reason no penalty is liable to be imposed on the appellant under Section 11 AC of the Act. Appeal allowed - decided in favor of appellant. - Excise Appeal No. E/50912/2018-Ex [ SM ] - Final Order No. 52007/2018 - Dated:- 24-5-2018 - Hon ble Mr. Ajay sharma, Member ( Judicial ) For the Appellant : Mr. Deepak Vajpayee, (CA.) For the Respondent : Mr. H.C. Saini, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit Rules, 2004 read with Section 11 AC of the Central Excise Act, 1944. (iii) The amount of interest of ₹ 2,25,697/- (Rs. Two lacks twenty five thousand six hundred and ninety seven only) payable under Section 11 AB (Now 11 AA already paid should not be appropriated against this demand.) 4. The ld. Joint Commissioner vide Order-in-Original dated 19.02.2016 confirmed the demand and pass the following order:- (i) I confirm the recovery of Cenvat credit availed utilized wrongly amounting to ₹ 5,02,446/- (Rs. Five lacks two thousand four hundred and forty six only) already paid by them and order to appropriate the same against the payment made vide challan no. 50131 dated 07.03.2013. (ii) I confirm the recovery of intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and submitted that the appellant had deliberately and with malafide intention availed the Cenvat Credit despite knowing that they are not entitled to avail it. He further submitted that the credit taken of packing material was very blatant and in complete disregard of the clear provision of law. He further submitted that the irregular credit was reversed by the appellant subsequent to the detection by the audit team and therefore the plea of the appellant for waiver of penalty is not tenable as the payment was made only after the intervention by the Department. 8. Section 11 AC of the Act pertain to penalty for short-levy not non- levy of duty in certain cases and the said Section is extracted as under: 11AC Penalty for short-levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal against imposition of penalty, the contention of the learned Advocate is that once they reversed the credit, it amounts to as if it was never taken. For the above proposal, he relies upon the Hon ble Supreme Court decision in the case of Commissioner of Central Excise v. Bombay Dyeing and Mfg. Co. Ltd. reported as [2007 (215) E.L.T. 3 (S.C.)] as also on Hon ble Allahabad High Court decision in the case of Hello Minerals Water Pvt. Ltd. v. Union of India [2004 (174) E.L.T. 422 (All.)]. As such, he submits that once the wrongly availed credit stands reversed by them, which amounts as if the same was never availed in which case penalty would not be leviable upon the appellant. 6. Countering the above argument, learned DR appearing fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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