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2012 (11) TMI 485 - AT - Central ExciseRefund of penalty - Imposition of Penalty for Evasion of Duty - Held that:- Following the decision of court in case of [Union of India Versus M/s Rajasthan Spinning & Weaving Mills AND Commissioner of Customs [2009 (5) TMI 15 - SUPREME COURT OF INDIA] Once the conditions specified u/s 11AC of the Central Excise Act are satisfied, penalty becomes mandatory and there is no scope of discretionary power. In the present case appellants were importing inputs and availing the CENVAT Credit of CVD amount is paid. The credit of CVD amount paid by the 100% EOU was availed on the strength of the invoices issued by 100% EOU. Whereas there is restriction for taking credit in respect of the inputs received from 100% EOU. This mistake was pointed out by the Revenue and the duty and interest was paid.It cannot be said that there was willful mis-statement or suppression of facts with intent to evade payment of duty as required for imposition of penalty under Section 11AC of the Act - final order of the Tribunal reducing the penalty to Rs. 1 lakh, which has been already paid by the appellants,is not challenged by the appellant. Therefore, appellants are not entitled for refund of the penalty already paid by them.
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