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TMI Blog2023 (10) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... 2; after availing credit on both the machines if there was transfer of one of the two Autoconers to Guna plant during 2001-2002, the right course would have been to debit the full credit of Rs. 5,62.949/- pertaining to the transfer of Autoconer and to take its full credit at the Guna plant - The Tribunal held that the fact of removal of one Autoconer to Guna Plant, which took place within two days of taking credit, was not brought to the notice of Central Excise Authorities, and it was detected only during the course of audit, and so the levy of penalty by the Commissioner of Appeals was sustainable. Thus, the question of Tribunal incorrectly interpreting and applying provisions of Rule 4 of the Cenvat Credit Rules 2002, Section 11A, 12 AB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944 against the judgment dt. 23.8.2017 passed by the Custom Excise and Service Tax Appellate Tribunal in Appeal No. E/1933/2011-Ex(SM) Chandigarh-I. 2. This CEA had been admitted on 16.08.2018 to consider following substantial question of law: Whether the Authority below failed to correctly interpret and apply the provisions of Rule 4, Rule 11A, 11AB and 11AC of the Cenvat Credit rules, 2002? 3. The appeal had been filed under Section 35-G of the Central Excise Act, 1944 against the judgment dt. 23.8.2017 passed by the Custom Excise and Service Tax Appellate Tribunal in Appeal No. E/1933/2011-Ex(SM) Chandigarh-I. 4. The appellant is engaged in the manufacture of Man Made Yarn falling under Chapter 55 of the First Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has wrongly availed Cenvat Credit of Rs. 5,62,949/- by way of suppression/mis-statement and thereby the extended the period of limitation was invokable against the appellant. 6. In the show-cause notice dt. 21.6.2006 , the appellant was asked to show cause why Cenvat Credit of the appellant availed/utilized by it may not be disallowed/recovered from it under Rule 14 of Cenvat Credit Rules, 2002 read with proviso to Section 11A of the Central Excise Act, 1944 by invoking the extended period of limitation; to show cause why interest under Rule 14 of Cenvat Credit Rules, 2002 read with Section 11 AB of the Act should not be recovered; and also to show cause why penal action should not be taken against it under Rule 15 of Cenvat C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailment of Cenvat Credit by the appellant. It denied that there was fraud, collusion, willful misstatement, suppression of facts, or contravention of any of the provisions of the Act or the Rules made thereunder and contended that the extended period of limitation cannot be invoked since there is no intention of evading payment of duty. 8. The Additional Commissioner (P V) passed an order on 22.12.2009 confirming the demand of Cenvat Credit of Rs. 5,62,949/- under Rule 12 of the Cenvat Credit rules, 2002 read with proviso to Section 11A of the Act by invoking extended period of limitation, interest under Rule 12 of the Cenvat Credit Rules and also imposed penalty of Rs. 5,62,949/- under Rule 13 (2) of the Cenvat Credit Rules, 2002 read wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial facts by taking 50% Cenvat Credit amounting to Rs. 5,62,949/- on non-existent Autoconer. 9. The appellant then preferred an appeal to the Customs, Excise and Service Tax Appellate Tribunal Chandigarh which dismissed the said appeal. 10. In its order dt. 23.8.2017, the Appellate Tribunal, after considering the contentions of the parties held that the appellant had availed 50% of the credit on both the Autoconers at their Baddi plant on 29.01.2002; after availing credit on both the machines if there was transfer of one of the two Autoconers to Guna plant during 2001-2002, the right course would have been to debit the full credit of Rs. 5,62.949/- pertaining to the transfer of Autoconer and to take its full credit at the Guna plant. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled 50% of the credit duty paid on both the Autoconers at Baddi on 29.01.2002. The finding of the Tribunal that this was detected by the audit and only then the explanation was offered by the appellant is not disputed by the appellant. In our opinion, the Tribunal did not err in holding that after availing credit on both the machines, if there was transfer of one of the two Autoconers to Guna plant during 2001-2002, the right course would have been to debit the full credit of Rs. 5,62,949/- pertaining to the transfer of Autoconer, and to take its full credit at the Guna Plant, and this view is consistent with Rule 4 (2) (a) of the Cenvat Credit Rules, 2002. 13. The fact of removal of one Autoconer to Guna plant, which took place within two ..... X X X X Extracts X X X X X X X X Extracts X X X X
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