TMI Blog2014 (3) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... lafide intent on the part of the assessee - issue involved in the present appeal is of legal interpretation of the provisions of Modvat Rules and is capable of interpretation in favour of the assessee also. As such the respondents cannot be faulted upon for availing the benefit of Modvat credit in respect of Tattoos so as to impose penalty upon them - no reason to impose any penalty on the respondents - denial of Modvat credit upheld, penalty is not required to be imposed - Decided partly in favour of Reveue. - E/1171/2005 - Final Order No. A/231/2012-EX(BR)(PB) - Dated:- 27-2-2012 - Ms. Archana Wadhwa and Shri Rakesh Kumar, JJ. Shri R.K. Varma, DR, for the Appellant. Shri Nikhil Aggarwal, Advocate, for the Respondent. ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dated 3-10-2002 needs to be confirmed. Accordingly, the appeal is allowed. In the absence of any new evidence cross objection is rejected and the amount of Rs. 79,90,852/- which availed as Cenvat credit on the said product is declared as illegal and is recoverable by the department, along with interest thereon in terms of provision of law comprised under Rule 12 of Cenvat Credit Rules, 2002, read with Section 12A of Central Excise Act, 1944 and Section 11AB of the said Act. The respondents are also liable to be subjected to penalty of equal amount in terms of Rule 13(2), read with Section 11AC of the Central Excise Act, 1944. Order accordingly. Appeal is allowed with consequential relief. 3. As is seen from above, apart from denyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any findings as to why the penalty of equal amount in terms of Rule 13(2) read with Section 11AC of the Central Excise Act, 1944 is imposable when the revenue has accepted the order of the Adjudicating Authority for the earlier period. It has been recorded therein that there was no mala fide intention in availing the Modvat credit. Therefore, we find that the order of the Tribunal in imposing penalty of the equivalent amount as that of the duty is not sustainable. The matter is remitted back to the Tribunal to consider the question as to whether any penalty is imposable keeping in view the earlier order of the Adjudicating Authority and the extent and nature of default, if any, committed by the appellant. 6. Accordingly, the matter sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show that the appellants have misused the Modvat facility with a mala fide intention. No penalty is therefore leviable on them and as such the penalty imposed in the Order-in-Original is set aside. 9. It stands recorded in the said order of the Hon ble High Court that setting aside of the penalty by Commissioner (Appeals) was not challenged by the Revenue. As such the said order of the Commissioner (Appeals), setting aside the penalty had attained finality and is required to be followed in the present proceedings. For the said reason, the penalty in the present proceedings is required to be held as not imposable on the respondents. 10. Apart from above, we note that the Commissioner vide his impugned order has himself dropped the deman ..... X X X X Extracts X X X X X X X X Extracts X X X X
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