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2011 (8) TMI 984 - CESTAT BANGALOREWaiver of pre deposit - Penalty - Held that:- I have not found prima facie case for the appellant/applicant against either of the penalties. During the period from November 2008 to May 2009, they had not paid any amount of duty as per the Rules, but, in their returns, they stated that duty was paid in cash. Prima facie, they mis-represented a crucial fact in the statutory returns. This mis-representation cannot be held to have been made without intent to evade payment of duty. This mis-representation is no different from “mis-statement of fact with intent to evade payment of duty”, which is one of the grounds under Section 11AC for mandatory penalty. Irregular utilization of CENVAT credit in violation of Rule 8(3A) ibid is a fact not in dispute. The amount of duty paid by way of such irregular availment of CENVAT credit has been demanded with interest under Rule 14 of the CENVAT Credit Rules, 2004. On a perusal of the text of the Rule shows that interest is leviable on an amount of duty paid by irregular availment/utilization of CENVAT credit. Wrong utilization of CENVAT credit virtually created a situation of short-payment of duty on excisable goods. It would thus appear that the CENVAT credit in question was utilized irregularly in violation of Rule 8(3A) of the Central Excise Rules, 2002 with intent to evade payment of duty on excisable goods - Conditional stay granted.
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