9911796707
TMI Blog2023 (7) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer or the service provider who avails the credit wrongly or utilizes the credit wrongly is held liable to pay penalty for such wrongful act. There is no allegation in the SCN that the appellant availed credit or utilized the same. In such circumstances, the penalty imposed cannot sustain. The impugned order is set aside. Appeal allowed. - EXCISE APPEAL No. 41678 OF 2013 - FINAL ORDER No.40616/2023 - Dated:- 27-7-2023 - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) Mr. N. Viswanathan, Advocate - For the Appellant Mr. Harendra Singh Pal, Assistant Commissioner (A.R) - For the Respondent ORDER Brief facts are that appellant is a 100% EOU Depot and has taken the dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igations cast under the Cenvat Credit Rules. It is submitted that the allegation that appellant has contravened the Rule 3 (7) (1) of erstwhile Cenvat Credit Rules, 2004 is factually and legally incorrect. It is submitted that the said provision deals with availment of credit for use in the manufacture of the final product or in providing output service. The said provision is for calculation of the credit that can be availed by manufacturer of final product or provider of output services. The said rule is not applicable to the appellant which is a depot. The said rule speaks about the restriction of the cenvat credit which can be availed by manufacturer or provider of output service. It does not state anything about the credit to be passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with intention to evade payent of duty, then, the manufacturer shall also be liable to pay penalty in terms of the provisions of section 11AC of the Excise Act. 8. It can be seen from the above that the said provision speaks about wrongful availment and utilization of cenvat credit. The appellant being a dealer has not availed or utilized the credit. Further it is also stated that the manufacturer shall be liable to pay penalty. This means that the manufacturer or the service provider who avails the credit wrongly or utilizes the credit wrongly is held liable to pay penalty for such wrongful act. There is no allegation in the SCN that the appellant availed credit or utilized the same. In such circumstances, the penalty imposed cannot s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
