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2015 (6) TMI 579 - CESTAT MUMBAIPenalty u/s 11AC - CENVAT Credit - Suo moto reversal of wrongly availed duty - Held that:- The appellant has taken Cenvat Credit in respect of education cess paid on basic custom duty which was not admissible. From the fact, it is clear that there is bonafide mistake in taking such credit on the part of the appellant. On pointed out by the audit, they paid Cenvat amount alongwith interest without raising any dispute of the said payment before issuance of show cause notice. In my considered view since the appellant without contesting and without protest paid wrongly availed Cenvat Credit alongwith interest before issuance of show cause notice and intimated vide their letter dated 19/5/2007 the case is squarely covered by subsection (2B) of Section 11A of Central Excise Act, 1944 according to which the Revenue should not have issued show cause notice. Therefore payment of Cenvat Credit alongwith interest attained finality. Since show cause notice was not supposed to be issued, consequential penalty should not have been imposed. In view of this position, I set aside the penalty under Section 11AC invoking provision of subsection (2B) of Section 11A of Central Excise Act, 1944. It is made very clear that payment of Cenvat Credit and interest thereupon is held to be sustained - Decided partly in favour of assessee.
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