TMI Blog2006 (12) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act, 1944. 2.The adjudicating authority, on the basis of material on record, held that there was shortage of cenvatable inputs when the Revenue officers conducted physical verification on 21-9-01, and that, it had also transpired from the record of the assessee that it had taken Cenvat credit, which was not admissible on HSD as per Rule 2(g) of the said Rules. The amount of Rs. 35,232/-, ordered to be recovered on account of shortage of cenvatable inputs and the amount of Rs. 17,517/- in respect of which cenvatable credit was ordered to be reversed, were appropriated since they were deposited by the party and penalty of Rs. 52,749/- was imposed on the respondents, which came to be set aside by the Commissioner (Appeals), with the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls Pvt. Ltd. - 2006 (203) E.L.T. 15 (M.P.) = 2006 (77) RLT 125; (3) Allahabad High Court decision in Pee Aar Steels (P) Ltd. v. CCE, Meerut reported in 2004 (170) E.L.T. 406. 4.The learned counsel for the respondents submitted that the Tribunal in Rashtriya Ispat Nigam Ltd. v. CCE, Visakhapatnam, reported in 2003 (161) E.L.T. 285, has held that in a case where the party has already deposited the duty with the department prior to issue of show cause notice, there was no justification to impose penalty. It was submitted that this decision was confirmed by the Hon'ble Supreme Court, because the appeal of the Revenue against the said decision was dismissed. He pointed out from the report in 2004 (163) E.L.T. A53, that while dismissing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Credit Rules, 2001. The authorities below, rightly rejected the contention that the credit on HSD oil was availed by the noticee under a bona fide mistake and correctly held that the credit was reversed by the respondents only after the Revenue officers detected and pointed out the wrongly taken Cenvat credit. The facts of the present case are therefore, cannot be comparable with the facts before the Tribunal in Rashtriya Ispat Nigam (supra), in which there was no finding of suppression of fact. Even in that decision, the Tribunal only observed that, "On the other issues, in view of the submissions made by the Counsel that the party has already deposited the duty to the Department, prior to issue of show cause notice, there is a lot of fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny point of time. Once it is noticed that duty as required was not paid at the time of clearing of the goods, but paid much later in point of time, then in such event, default occurs thereby attracting the rigour of Section 11AC". The Hon'ble Punjab and Haryana High Court in Machino Montell (supra) had in terms held in the context of Section 11AC of the said Act, that: "once a case is covered by the situation mentioned in Section 11AC, mere deposit prior to issuance of show cause notice under Section 11A of the Act will not necessarily negate the situation mentioned in the said Section." It was further held that: "the applicability of Section 11AC was not excluded at the threshold merely on deposit of the amount after having been caught and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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