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2011 (8) TMI 530 - AT - Central ExcisePenalty under Section 11AC - if an assessee entertains a bonafide belief that he is entitled to avail credit, he cannot be found fault with - imposition of penalty in respect of credit availed on MS Channels, angles etc. cannot be sustained. Credit has been denied is on the supplies made by M/s. Reliance Industries Limited, 100% EOU, during the period from 30.12.2008 to 03.01.2009, credit was taken on 04.01.2009 in respect of five invoices issued by Reliance Industries - Reliance Industries were indeed paying duty and appellant was taking credit till Dec 2005. Another point that was submitted by the learned counsel that during the relevant period appellant had substantial amount of cenvat credit in their books of account and there was no need to avail wrong credit at all - It is noticed that as on 01.01.2009, appellant had a balance of cenvat credit of basic excise duty amounting to Rs. 33,16,254/- whereas, the credit taken on these five invoices is only Rs. 4,18,840/-.Therefore, it cannot be said that there was deliberate intention to boost the cenvat credit account - Therefore, taking note of the fact thatappellant had paid duty and interest as soon as the same was pointed out and before issue of show cause notice, this was a fit case for not issue of show cause notice under the provisions of Section 11A (2B) of Central Excise Act, 1944. As regards amount of Rs. 27,203/-, it is noticed from the invoice that invoice clearly shows that what was paid was basic customs duty and education cess separately - Appellant was an assessee and availing substantial amount as cenvat credit and it was a regular feature availing the cenvat credit as can be seen from the invoices received by them and further it is also to be taken note of that in respect of five invoices on where an amount of Rs. 4,18,840/- was involved also there was payment of basic custom duty but appellant had taken credit of only CVD - Therefore, it is quite clear that the wrong availment of credit is only in respect of that invoice amounts to suppression of facts - Therefore, in my view the appellant is not entitled to credit as regards amount of Rs. 27,203/- and penalty is imposable.
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