9911796707
TMI Blog2018 (9) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... hey have also been availing CENVAT credit. For the GTA services availed by them, they paid service tax on reverse charge mechanism and had taken credit of the same in their CENVAT account. During the period January, 2005 to January, 2009 they had utilized the CENVAT credit so taken towards payment of Central Excise duty of their final product in violation of Rule 3(4) of CENVAT Credit Rules, 2004 inasmuch as, they have utilized the credit in excess of what was available in their account at the close of the month during which the goods were cleared. The assessee is required to pay duty by the 5th of the close of every month using either CENVAT credit or in cash. However, the CENVAT credit which they can use is only to the extent it is availa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aggrieved, the appellant preferred an appeal before the first appellate authority who, vide the impugned order rejected the appeal and upheld the Order-in-Original. The assessee filed this appeal against the impugned order. They do not dispute the facts of the case. They also do not dispute that they had wrongly utilized the CENVAT credit during the period of dispute. They appealed on the following grounds: (a) The issue involves a bonafide mistake of utilising the CENVAT credit wrongly in violation of Rule 3(4) and there is no demand of duty in the show cause notice itself. Therefore, there is no evasion of duty or an allegation to this effect. (b) The proceedings were initiated on the basis of their monthly returns, which along with cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand of duty, interest should not be charged either. 3. Learned Counsel for the appellant reiterated the above submissions. Learned departmental representative reiterated the arguments made in the Order-in-Original and Order-in-Appeal. We have carefully considered both sides. The appellant had cleared goods and had paid Central Excise duty by the due date by wrongly utilizing the CENVAT credit which was taken after the close of the month in violation of Rule 3(4) of the CENVAT Credit Rules, 2004. The show cause notice does not propose to demand Central Excise duty. The penalty under Rule 25 read with Sec.11AC equal to the amount of duty is unsustainable because there is no demand for duty at all. We, therefore, find that the penalty of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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