TMI Blog2009 (9) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal. 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. - E/2640/2007-SM(BR) - 127 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty demand has been confirmed against the appellant in the order-in-original. On appeal against this order, the Commissioner (Appeals) vide order-in-appeal dated 28-6-07 upheld the Asstt. Commissioner's order. It is against this order that the present appeal has been filed. 2. Heard both sides. 2.1 Shri S.P. Ojha, Id. Consultant for the appellant pleaded that while penalty has been imposed by invoking Section 1 neither there is any duty demand in the SCN nor any duty demand has been confirmed in the adjudication order passed by the Dy. Commissioner that there are no elements present for invoking Section 1 so as for imposition of penalty under this section, that the bulk of the allegedly wrongly taken credit is an amount of Rs.86,331/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t credit of Rs.92,605/-, the major amount of Rs.86,331/- pertains to the capital goods Cenvat credit as while at the time of receipt of the capital goods, the appellant should have confined the credit of 50% of the duty involved, they took full credit of duty at the lime of receipt of capital goods instead of confirming the same to 50%, they would become eligible for the balance 50% in the next financial year. Moreover, irrespective of the merit, I find that the appellant had reversed the entire disputed amount along with interest as soon as it was pointed out. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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