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2016 (6) TMI 269 - AT - Central ExcisePenalty under Section 11AC - removal of non-excisable goods on payment of duty through cenvat credit - whether there is suppression of fact, mis-declaration, fraud, collusion etc? - Held that:- Appellant have debited the Cenvat Credit even though wrongly at the time of removal of non-excisable fabric, and the appellant has also paid additional equal amount in cash after issuance of show cause notice which they have not contested. On careful reading of the show cause notice, it is find that there is no specific allegation that the appellant has suppressed the fact of removal of non-excisable goods on payment of duty. The appellant shows the debit entry in their RG 23A Part-II account and also shown the quantity of fabrics removed in their RG 23A Part-II account, the same has been reflected in the ER-1 Return. Therefore, in the absence of any specific allegation in the show cause notice and the disclosure of entire fact in the statutory record does not show suppression of fact on the part of the appellant. Thus the penalty under Section 11AC/Rule 15(2) is not imposable on the appellant, however there is no doubt that the appellant have contravened the provision. Therefore the penalty under Section 11A is set aside and the demand of Cenvat Credit, interest and penalty under Rule 27 are maintained. The appeal is allowed in the above terms.
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