TMI Blog2001 (6) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... e dated 21-10-1997 alleged that credit had been taken by them on original copies of invoices dating during the period March, 1993 to May, 1996. The show cause notice alleged wilful suppression etc. for imposing penalty under Section 11AC of the Central Excise Act and under Rule 173Q and Rule 209 of the Central Excise Rules. The Asstt. Commissioner imposed penalty under Rule 173Q and also imposed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the automatic waiver of penalty once the demand is hit by limitation is available to the present appellant. 3. Recovery of wrong credit is in terms of Rule 57-I. As the Rule then existed it covered wrong credit taken by the manufacturer or the assessee. The definition of assessee under Rule 2(ib) does not include a Dealer registered under Rule 57GG. If such a dealer takes credit wrongly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion may apply - " ........... or takes credit of duty which he knows or which he has reason to believe, is not permissible under these Rules ...........". 5. Under the said Rules, the credit was required to be taken only on duplicate copies of the invoices. The allegation in the show cause notice is that the credit was taken on the basis of original copies. In reply to the first part of the show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded period. In a situation where the recovery is not alleged at all, this judgment may not have any relevance. The ratio of the judgment is that where there is a misrepresentation made by the assessee and where the mis-representation could be readily observed by the officers during their routine check, then it cannot be state that the assessee had wilfully evaded the payment of duty. In the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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