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TMI Blog2022 (12) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... itself was not taken / availed by the appellant, there is no scope whatsoever to allege wilful or deliberate intention to evade duty. Unfortunately, the First Appellate Authority has also ignored the plea of the appellant, by upholding the findings of the Adjudicating Authority. The demand of duty by invoking the extended period cannot sustain as the Revenue has not been able to justify the same and therefore, the demand, as confirmed in the impugned order, cannot be sustained. When the demand itself cannot be sustained, the penalty imposed also cannot be sustained for the same reason and consequently, the impugned order to this extent cannot be sustained. Appeal allowed. - Excise Appeal No. 40324 of 2022 - FINAL ORDER NO. 40381/ 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 021, filed on 22.03.2021, wherein it has pleaded inter alia that the Mill had stopped its crushing operation from 2017-18 onwards; that there was no revenue; that the Mill was expecting Grant-in-Aid from the Government; that the credit of Rs.19,76,027/- was taken by mistake after one year, belatedly, due to closure of the Mill, but the credit was not availed by the Mill and that the appellant could not reverse the same owing to its disability to do so. 4. The Adjudicating Authority, after considering the reply, however, vide Order-in-Original No. 06/2021 (CEx) dated 23.03.2021, confirmed the demands proposed in the Show Cause Notice, against which an appeal came to be filed before the First Appellate Authority. The First Appellate Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the non-reversal of the same. Thus, when the credit itself was not taken / availed by the appellant, there is no scope whatsoever to allege wilful or deliberate intention to evade duty. Unfortunately, the First Appellate Authority has also ignored the plea of the appellant, by upholding the findings of the Adjudicating Authority. 9. I find, in this regard, the order of the co-ordinate Ahmedabad Bench of the CESTAT in the case of M/s. Universal Chemicals Industries Pvt. Ltd. v. Commissioner of Central Excise, Vadodara-II [2016 (334) E.L.T. 119 (Tri. Ahmd.)] is relevant, wherein it has been held as under:- 3. In our considered view, the show cause notice is issued in the month of October, 2011, demanding to recover Cenvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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