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2015 (11) TMI 211 - AT - Central ExciseSuo moto reversal of credit before issuance of SCN - Interest u/s 11AB - Imposition of penalty - Held that:- It come to the notice regarding the short payment, non payment of duty during the audit of the appellant s record as a result appellant suo moto paid the entire duty and not contesting the same. The Revenue has not issued any show cause notice for demand of duty and appropriation of the amount already paid by the appellant. - under this section duty is determined by the Central Excise Officers after considering representation made by the person on whom notice is served under subsection(1). In the present case neither any notice was issued under Section 11A(1) nor Central Excise Officers has determined the duty short paid / not paid under subsection (2) of Section 11A as is evident from the proceedings that no show cause notice under Section 11A(1) was issued nor any adjudication in respect of short payment or non payment of duty has been made, therefore ingredients required under Section 11AC inasmuch as issuance of show cause notice under Section 11A(1) and determination of duty under Section 11A(2) was not carried out by the department, therefore penalty under Section 11AC could not have been imposed. - penalty under Rule 173Q, I find that since the appellant has not paid duty or availed Cenvat Credit wrongly they have contravened provision of Central Excise Rules, therefore, they are liable to penalty under Rule, 173Q, hence penalty of ₹ 10,000/- imposed under Rule 173Q is hereby upheld. As regard the interest, since there is admitted wrong availment of Credit and though the same was paid on pointing out by the audit officer but paid only belatedly, the same attract interest unavoidably. From the date of availement of Modvat credit and not from the utilization of wrong availement of credit. Following the ratio of the Hon' ble Supreme Court decision in the case of Ind-swift, I upheld the demand of interest as provided under Seciton 11AB at the relevant time - Interest under Section 11AB as confirmed - penalty imposed under Rule 173Q is upheld - However, Penalty under Section 11AC is dropped - Decided partly in favour of assessee.
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