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TMI Blog2018 (7) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... CENVAT Credit Rules, 2004. It is not in dispute that the credit has been taken wrongly by the appellant. Now the other elements required to fasten the penalty are not evident from the show cause notice - It is a well settled position that suppression of facts must be a positive act. In this case the assessee is not required to show individual items on which he has taken credit in his ER-1s. When something was not required to be declared, he could not have been expected to declare it. This cannot be called a suppression of the fact because there was nothing required to be declared - The other elements such as fraud, collusion, wilful mis-statement are not alleged in the show cause notice. There is no case to impose penalty under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules r/w Sec.11 AC of the Central Excise Act. 2. Aggrieved, the appellant filed an appeal before the Commissioner (Appeals) who upheld the Order-in-Original and rejected the appeal. The present appeal is against this Order-in-Appeal passed by the Commissioner (Appeals). The Learned consultant of the appellant submits that they have already paid the wrongly availed CENVAT Credit along with interest even before the show cause notice was issued and hence no penalty should be imposed under Sec.11 AC. He prayed that the penalty imposed under Rule 15(2) of the CENVAT Credit Rules r/w Sec.11 AC of Central Excise Act may be set aside. It is his argument that in Para 5 of the show cause notice it is alleged that the utilisation of CENVAT Credit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant had suppressed the information and therefore was liable to penalty under CENVAT Credit Rule 15(2) r/w Sec.11 AC of Central Excise Act. As far as the option of payment of 25% of penalty imposed under Clause (c) of Sub-Section (i) of Sec.11 AC is concerned, it is his submission that no such Order is required to be issued in the Order-in-Original and appellant could have opted for paying penalty within the time specified. 4. I have gone through the records of the case and considered arguments on both sides. The ineligibility of the CENVAT Credit on the inputs is not in dispute. When pointed out, the appellant had reversed the same along with interest even before the show cause notice was issued to them. The only question to be decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducting an audit of the assessee, the fact came to light. The show cause notice, therefore, proceeds to conclude that the assessee had suppressed the fact. It is a well settled position that suppression of facts must be a positive act. In this case the assessee is not required to show individual items on which he has taken credit in his ER-1s. When something was not required to be declared, he could not have been expected to declare it. This cannot be called a suppression of the fact because there was nothing required to be declared. The other elements such as fraud, collusion, wilful mis-statement are not alleged in the show cause notice. What the show cause notice alleges is that the assessee suppressed facts with an intent to evade the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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