TMI Blog2013 (8) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... 270/2011 - - - Dated:- 27-5-2013 - Mr. M.V. Ravindran, J. For the Appellant: Shri Dhaval Shah, Adv. For the Respondent: Shri Manoj Kutty, A.R. JUDGEMENT Per: M.V. Ravindran: This appeal is directed against Order-in-Appeal No. Commr. (A)/ 282/VDR-I/2011, dt.3.8.2011. 2. Briefly stated the facts of the case are that the appellant had availed CENVAT Credit of duty paid on capital goods during the period 2001 to 2006. The appellant s records were audited by the Audit party and it was noticed that the appellant had availed CENVAT Credit of duty paid of Central Excise duty and also claimed depreciation on the said amount under Income Tax Act. Since the appellant herein, for the period 2001 to 2005, reversed the CENVAT Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal. 3. Ld. Counsel would draw my attention to the fact that the adjudicating authority has, in fact, dropped the proceedings for the demand raised for the year 2005-2006, accepting the appellants claim that they have filed revised income tax return before the authorities, wherein they have expunged the depreciation amount. It is his submission that the first appellate authority had erred in enhancing the penalty imposed by the adjudicating authority as the Department was not in appeal before the first appellate authority on the quantum of penalty imposed by the adjudicating authority. It is his submission the first appellate authority has enhanced the penalty without any authority of law. He would bring to my notice the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order-in-Original before first appellate authority. 8. On this matrix, it needs to be gone into whether the first appellate authority has erred while enhancing the penalty imposed by adjudicating authority in the absence of any appeal from the Revenue. It is settled law that the first appellate authority can enhance the penalty only on an appeal filed by the Revenue authority against that order or as per provisions in statute. In the case in hand, it is seen that the assessee has disputed and challenged the imposition of penalty of Rs.10,000/- before the first appellate authority. The first appellate authority has not issued any show cause notice to the appellant for enhancement of the penalty, despite there being statutory provisions i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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