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2015 (4) TMI 956 - AT - Central ExciseWrong availment of CENVAT Credit - Capital goods - Demand of interest and penalty - Held that:- Appellant reversed the credit on being pointed out by the audit party. It is further seen from the show cause notice that the appellant by letter dtd 17.1.2005 informed that they have inadvertently due to human/accounting mistake taken the credit and reversed the credit prior to utilising the same towards payment of central excise duty and therefore interest on reversal of excess credit is not sustainable. It is noticed that the Adjudicating authority had not disputed the fact of non-utilization of credit by the appellant. Credit taken but not utilized till reversal, could not compel the assessee to pay interest. So, the demand of interest on the unutilised cenvat credit cannot be sustained. Amount of ₹ 74,00,000/- was availed by the appellant in a number of cases, while the input cenvat credit should have been taken only on the duty on the goods as mentioned in the invoice but instead of this, the credit was taken on the full value of the goods. In some cases, credit taken on the basis of Central Excise invoices or bills of entry is more than the amount of Central Excise duty/CVD mentioned in the Central Excise Invoices/bills of entry. Further, cenvat credit amounting to ₹ 28,00,000/- has been taken on cenvated capital goods/input some job work under Rule 4 of the cenvat credit rules, which had not sent back within the stipulated period, but still the cenvat credit had not been reversed. - amount ₹ 74,00,000/- and ₹ 28,00,000/- cannot be treated as a mere erroneous availment of credit. Hence imposition of penalty is warranted. However, considering the facts and circumstance of the case the quantum of penalty should be reduced. - Decided partly in favour of assessee.
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