9911796707
TMI Blog2008 (3) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... wrongly taken by the party. In a second audit also, which was conducted during the period November, 1999 to October, 2000, similar irregularity was noted. The total amount of Modvat credit found to have been wrongly availed was Rs. 26,58,407/-. These credits were reversed by the part on various dates. To be precise, credit of Rs. 17,19,850/- was reversed during the course of the first audit and credit of Rs. 9,38,557/- was reversed during the course of the second audit. A further aspect to be noted in this contention is that a party of the above amount of Rs. 26,58,407/- was reversed in PLA for want of sufficient credit in RG 23A Part-II. Later on, the assessee found that, in either category (RG 23A Part II account and PLA), there were cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 are the appellate Commissioner's orders now under challenge in the Revenue's Appeal Nos. E/278t2002 and E/279/2002 respectively, 2. After examining the records and hearing both sides, we think we should dispose of the Revenue's appeals after enjoying the fun arising therefrom, The department issued two show-cause notices, each of which proposed to reject partly a refund claim of the assessee. The assessee's objections to this proposal were rejected and the Assistant Commissioner upheld the department's proposal. In the result, the refund claims filed by the assessee were stood partly rejected as proposed in the respective show-cause notices. Against the Orders-in-Original, the assessee had a grievance and the Revenue had none. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the total amount of duty demanded by the Commissioner. Therefore, in the first instance, the Commissioner's demand to the extent of Rs. 12,55,743/- shall stand set aside. The balance is an amount of Rs. 14,12,184/-, which includes an amount of Rs. 4,73,627/- reversed by the party in Modvat account and PLA during the course of the first audit and an amount of Rs. 9,38,557/- reversed by them in the said accounts during the course of the second audit. This amount, learned counsel submits, stands reversed in the two accounts. It is, however, submitted by learned counsel that the demand of this amount is hit by limitation. It is submitted that all the relevant facts had become known to the department through internal audits of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, be allowed to be recredited or refunded. In the result, demand of duty to the extent of Rs. 14,12,184/- shall stand sustained. 6. We have already found that the above credit of Rs. 14,12,184/- was reversed in the relevant accounts. This happened long before issue of the show-cause notice. It is settled law that, where duty was paid before show-cause notice, there is no question of imposition of any penalty under Section 1 1AC of the Central Excise Act. The penalty in the present case is one imposed under Rule 571(4) of the Central Excise Rules, 1944 which provision was pari materia with Section 11AC of the Act. Following the ruling of the apex court, we set aside the penalty imposed by the Commissioner. For similar reasons, the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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