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2022 (9) TMI 1541 - AT - Central ExciseRectification of mistake - imposition of 100% penalty under section 11AC readwith Rule 25 of Central Excise Rules, 2002 - extended period of limitation - HELD THAT:- Section 11AC prescribed a mandatory penalty for non-levy or short levy or non-payment or short payment or erroneous refund of duty by reason of fraud or collusion or any willful statement or suppression of facts or contravention of any provision of the Act or the Rules made thereunder with an intent to evade payment of duty. These are the same elements which are required to confirm duty invoking the extended period of limitation - the demand of duty upheld by invoking extended period of limitation in the final order and, therefore, penalty under section 11AC invariably follows and there is no discretion in the matter - there is no mistake in not giving a separate finding on the penalty under section 11AC. Computation by adjusting the cenvat credit available on inputs used was not considered - HELD THAT:- There are no provision in the Act or Rules by which the duty can be determined after deducting the cenvat credit which may be available on the inputs as claimed by the assessee. Of course, if duty is payable, the assessee will be entitled to cenvat credit as per the Cenvat Credit Rules and may also able to use the cenvat credit to pay the duty. This, first, of course, will be subject to verification of the availability of cenvat credit as per the rules. Thus, instead of reproducing the findings of the Adjudicating Authority, the final order of the Tribunal has endorsed his findings. Therefore, the assertion in the application by the Revenue that the Tribunal has set aside any demand in the concluding paragraph of the final order is factually incorrect and misconceived. Application disposed off.
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