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TMI Blog2018 (7) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned Show Cause Notice. It is apparent that the said deposit was made almost 15 months prior the said Show Cause Notice. The only adjudication remains is as to whether the Commissioner (Appeals) has rightly invoked Sub Section C of Section 11 AC of CEA or the facts of the case takes the appellant to fall under Sub Section A of 11AC of CEA - Held that:- The Sub Section C could have come into picture if and only if there had been some positive act observed by the Department, that too by way of cogent evidence to show that there was an element of mensrea of tax evasion available with the appellant while availing the impugned cenvat credit and even while utilizing the same - The findings of Commissioner (Appeals) merely relying upon the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department alongwith the interest even prior the issuance of Show Cause Notice. Due to the said reason, the original Adjudicating Authority vide the Order dated 12.06.2017 had dropped the proceedings initiated against the appellant vide the said Show Cause notice. However, Commissioner (Appeals) vide the Order under challenge has confirmed the demand of the said Show Cause Notice alongwith the imposition of the penalty under Section 11 AC(c). Resultantly, the present Appeal. 3. I have heard Shri J.M. Sharma, Ld. Advocate for the appellant and Shri H.C. Saini, Ld. DR for the Department. It is submitted on behalf of the appellant that the appellant has availed the cenvat credit under mis-interpretation of the provision however, under bona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and once both these elements are available, the Commissioner (Appeals) has rightly invoked Section 11AC (1a) of CEA. It is submitted where there was an apparent admission, there was no need for the Department to look into for another evidence. While justifying the Order, the Appeal is prayed to be allowed. 5. After hearing both the parties, I am of the opinion as follows: It is an apparent and admitted fact that the amount of cenvat credit as is alleged by the Department to have been wrongly availed, was deposited by the appellant alongwith the interest much within the reasonable time of it being brought to the notice of the appellant and much before the issuance of the impugned Show Cause Notice. It is apparent that the said d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) where any duty of excise h as not been levied or paid or has been short-levied or shortpaid or erroneously refunded, by reason of fraud or collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under Sub-Section (10) of Section 11A shall also be liable to pay a penalty equal to the duty so determined: Provided that in respect of the cases where the details relating to such transactions are recorded in the specified record for the period beginning with 8th April, 2011 up to the date on which the Finance Bill, 2015 receives the assent of the President (both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or the Rules made thereunder with intend to evade payment of duty must have to be explained beyond all reasonable doubts. The findings of Commissioner (Appeals) merely relying upon the deposit by the appellant of the wrongly availed cenvat credit as an admission and a reason to not to search for the evidence qua the positive act of alleged fraud and mis-representation, to my opinion, is a finding based on the presumption and surmises. The same is therefore not sufficient to bring home the guilt of the appellant. 7. The authorities relied upon by the Department even in the case of CCE, Bangalore vs Alsthom Instrument ..... X X X X Extracts X X X X X X X X Extracts X X X X
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