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2013 (1) TMI 168 - AT - Central ExciseExcess/ wrong Cenvat Credit - inputs and input services with the invoices not in the name of the appellant - Commissioner upheld the demand for cenvat credit but set-aside the interest levy and reduced the penalty to Rs. 25,000/- from Rs. 1,53,138/- - Held that:- As decided in Rangdhara Polymers [2013 (1) TMI 96 - GUJARAT HIGH COURT] Circular issued by the Board prescribing monetary limit for filing appeal by the Revenue, was issued before the date on which the appeal comes up for consideration before the Court, the monetary limit prescribed in the Circular would apply. Also as decided in Stovec Industries Limited [2013 (1) TMI 72 - GUJARAT HIGH COURT] since the Board itself had directed the lower authorities not to file an appeal before the Tribunal for an amount of less than Rs.1,00,000/- vide the circular dated 20.10.10, the appeal filed by the Revenue is dismissed - appeal of revenue for enhancement of penalty cannot be allowed. Demand for CENVAT Credit, interest and imposition of penalty - assessee appeal - Held that:- As decided in case of Ind-Swift Laboratories Ltd. [2011 (2) TMI 6 - SUPREME COURT] interest has to be paid even if credit has not been utilised. Therefore, assessee has not made out a case for waiver of interest and demand for interest has to be upheld. Penalty - Held that:- The appellant had substantial amount of credit in their account and it was their submission that dealing assistant of the assessee made a mistake and because of the mistake, wrong credit was taken and there was apparently no intention to do so. In view of the case of Ashoka Metals Dicor (P) Limited [2010 (4) TMI 738 - ALLAHABAD HIGH COURT] has held that where the credit has not been utilised, there cannot be any payment of duty without there being sufficient balance and therefore, no penalty is leviable. Respectfully following the decision of the Hon'ble High Court mentioned above, the penalty of Rs. 25,000/- imposed on the appellant is set-aside.
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