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2009 (9) TMI 483 - CESTAT, NEW DELHIPenalty- Capital Goods- The appellant had wrongly taken Cenvat credit amounting to Rs.92,605/-. The taking of wrong credit had been pointed out by the Audit in course of audit of the appellant’s record on 18-3-04 and the entire amount has been paid at that time along with interest. The Asstt. Commissioner vide Order-in- Original imposed penalty of Rs.92,605/- under Rule 13 of Cenvat Credit Rules, 2002/Rule 15 of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, while neither the SCN makes duty demand nor any duty demand has been confirmed against the appellant in the order-in-original. On appeal against this order, the Commissioner (Appeals) upheld the Asstt. Commissioner’s order. Held that- On going through the SCN and the adjudication order, I do not find any element of Section 11AC like wilful misstatement, fraud, suppression of fact, contravention of the provisions of Central Excise Act, 1944 or of the Rules made there under with intent to evade payment of duty etc. Moreover, I also find that neither the SCN demands any duty nor in the adjudication order any duty demand has been confirmed. In view of these circumstances, I am of the view that imposition of penalty was not justified. The impugned order, therefore, is not sustainable and the same is set aside. The appeal is allowed.
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