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2015 (7) TMI 929 - AT - Service TaxDenial of CENVAT Credit - Imposition of penalty - They also contended that excess utilized credit was paid back in cash and that even before the issue of shown cause notice. So no extended period was invokable nor was rule 15(2) of Cenvat Credit Rules 2004 or Section 11AC consequently no penalty was imposable. - Held that:- Commissioner (Appeals) has examined the issue in detail and concluded the issue in favour of revenue. Fraud has clearly manifested and has also been admitted. Extended period has rightly been involved. Penalty is also imposable as intent to defraud the revenue is very clear. Since both dutiable and exempted products were being manufactured, credit availment was to be restricted to 20% of ₹ 372126.69/-. - Decided against the assessee. Appellant has also raised the issue of refund of excess amount. There is no such issue discussed in Commissioner (Appeals)'s Order. In present grounds of appeal also, no specific calculation is pointed out fortifying their claim for refund. This issue has also not been vehemently taken up in earlier stage. There are no indications on record whether these calculations were provided and specifically elaborated. In absence of these factors being reflected, I am unable to appreciate the quantifications in this regards. Further no evidence is coming on record whether refund claim was specifically pleaded with Commissioner (Appeals). Accordingly no order is warranted on this issue at the stage of appeal before tribunal. - Decided against assessee.
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