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2013 (11) TMI 741 - CESTAT BANGALOREInvocation of Section 11A (2B) or not – Extended period of limitation – Wrong procedure for cenvat credit – Actually the amount should have been reversed – short payment of duty as well as excess payment - Held that:- The appellants have misunderstood the legal provisions and have paid duty on transaction value over a period of five years - there was not only short payment but also excess payment - In such a situation it is difficult to sustain the view that there was mis-declaration with intent to evade duty on the part of the appellants - As regards suppression of facts it cannot be invoked since there was no need for the assessee to report the methodology followed by them for payment of duty on the inputs cleared as such - thus the extended period could not have been invoked - Penalty under Rule 15(2) read with Section 11AC of Central Excise Act 1944 could not have been invoked. Penalty under Rule 15(1) of CCR 2004 – Refund of Excess amount paid – Held that:- The appellant clearly misunderstood the legal provisions and the appellant is expected to apply the relevant Rule correctly - appellants have not applied the Rule relating to clearance of inputs as such correctly – thus penalty of Rs. 5,000/- imposed under Rule 15(1) of CENVAT Credit Rules 2004 upheld - the contention that they are entitled to refund of the excess amount paid before the issue of show-cause notice is valid - according to Section 11A(2B) itself, if the amount paid by the appellant is subject to verification and in this case issue of show-cause notice invoked extended period it is obligatory for the department to refund the amount which has been deposited in excess - the revenue is bound to refund the amount – decided in favour of Assessee.
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