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2013 (1) TMI 505 - AT - Central ExciseWaiver of Pre deposit – Intent to evade payment of duty - Wrongly CENVAT credit of CVD - Import one machine, ‘Product Screen Separator Drive’ from their group company - Declare the value of the machine as Rs. 13,93,827/- Chartered Engineer ascertained the assessable value as Rs. 49,02,861/- The same was also admitted by the importer - Penalty u/s 112(a) of the Customs Act, 1962 - Importer admitted the duty liability, approached the Settlement Commission for getting immunity from penalties - Settlement Commission gave immunity from the penalties - Importer firm was taken over from the applicants, therefore, the applicants took the CENVAT credit of CVD paid by the importer Whether the CVD was paid on detection by the Customs, therefore, applicants are not entitled to take CENVAT credit of CVD paid by the importer as per Rule 9(1)(b) of the CENVAT Credit Rules, 2004 Held that:- The Penalty u/s 114A of the Customs Act, 1962 is leviable for demand of additional amount of duty on account of fraud, collusion, willful mis-statement, suppression of facts and nonpayment of duty with an intent to evade payment of duty and on that amount credit is not available as per Rule 9(1)(2) of the CENVAT Credit Rules, 2004. In this case, no additional amount of duty has also been confirmed against the applicants, therefore, prima facie, the applicants are entitled to take CENVAT credit. Therefore, they have made out a case of 100% waiver of pre-deposit
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