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TMI Blog2019 (7) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... credit on opinion that it would be more beneficial than drawback. They did not suppress the fact of availing drawback benefit - the penalty of ₹ 4,23,503/- is unwarranted. Appeal allowed in part. - E/41027/2018 - FINAL ORDER NO. 40903/2019 - Dated:- 5-7-2019 - Smt. Sulekha Beevi C.S, Member (Judicial) For the Appellant: Shri M. Karthikeyan, Adv. For the Respondent: Shri L. Nandakumar, AC (AR) ORDER Brief facts are that the appellants are engaged in the manufacture of Fruit Pulp and are registered with the department. During verification of accounts, it was noticed that for the period 2014-15, the appellant availed Cenvat credit of duty paid on packing mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 5 of Cenvat Credit Rules, 2004. The department pointed out that the appellant is not eligible for refund as they have already received drawback of ₹ 20 lakhs. The appellant then withdrew the refund claim. Later on, the present show-cause notice was issued to the appellant proposing to recover the credit availed by them alleging that the appellant cannot avail the credit as they have received drawback benefit. The learned counsel explained that the appellant had availed the credit only on the legal opinion given to them stating that the appellant would benefit more by taking credit and applying for refund instead of availing the facility of drawback. This was only due to such legal opinion. Even if the appellant availed cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidering the submissions and facts I hold that the order disallowing the credit and recovery of the same is legal and proper. However, the penalty of ₹ 4,23,503/-, in my view is unwarranted. The appellant, who is doing major clearance as export cannot in any way benefit by availing the credit. They availed the credit on opinion that it would be more beneficial than drawback. They did not suppress the fact of availing drawback benefit. In these circumstances, I set aside the penalties. The impugned order is modified to the extent of setting aside the penalties only without disturbing the demand of wrongly availed credit. The appeal is partly allowed in the above terms. (Dictated and pronounced in open court) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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