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TMI Blog2019 (10) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... s not mentioned in the show cause notice. Further that the entire duty and interest was paid voluntarily on being pointed out. It held that no case for imposing the penalty is made out. The impugned order imposing the penalty is not sustainable in law - penalty set aside - appeal allowed - decided in favor of appellant. - E/20741/2019-SM - Final Order No. 20717/2019 - Dated:- 12-9-2019 - HON'BLE MR. S.S GARG, JUDICIAL MEMBER Shri M.S. Nagaraja, Adv For the Appellant Shri K.B. Nanaiah, Asst. Commissioner (AR) For the Respondent ORDER Per : S.S GARG The present appeal is directed against the impugned order dt. 22/04/2019 passed by the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed CENVAT credit of ₹ 2,62,616/-, the appellant filed appeal before the Commissioner(Appeals) and they have also challenged the imposition of equal penalty. Learned Commissioner(Appeals) has allowed the appeal partially and the disputed CENVAT credit of ₹ 2,62,616/- was allowed and the demand was set aside to that extent along with interest and proportionate penalty. But the Commissioner(Appeals) has upheld the penalty. The appellant has aggrieved by the imposition of the penalty in the present appeal. 3. Heard both sides and perused the records. 4.1. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Revenue has failed to establish that there was a suppression of fact with intent to evade payment of duty. For this he relied upon the following decisions:- i. CCE, Indore Vs. Medicaps Ltd. [20111(24) STR 572 (Tri. Del.)] ii. CCE, Jaipur Vs. Pushp Enterprises [2011(22) STR 299 (T)] 5. On the other hand, the learned AR defended the impugned order. 6.1. After considering the submissions of both sides and perusal of the material on record, I find that in the case of Geneva Fine Punch Enclosures Ltd., the Hon ble High Court of Karnataka in para 6 has held as under:- 6. Therefore, the determination of liability to pay duty is a condition precedent for imposing pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmation of duty demand and consequently, the appellant also would be liable to pay interest on the duty demand confirmed. As regards the penalty imposed on the appellant, Section 11A(2B) provides for non-issue of a show cause notice in case the duty demand is paid before the issue of show cause notice. In the present case the appellant has fulfilled this condition and therefore, the question of imposition of penalty under Section 11AC would not arise at all. Accordingly, we set aside the penalty imposed on the appellant. But for the above modification, the impugned order is upheld. Thus, the appeal is partly allowed. 7. Since the ratio of the decisions cited supra is applicable in this case and by following the same, I am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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