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2016 (6) TMI 399 - AT - Central ExciseIneligibility of cenvat credit - waiver of penalty - Held that:- As find that there is no suppression of facts as suppression is a finding which would presuppose non disclosure and there has been no withholding of information in the instant case. A mere failure to disclose certain facts to the department would not result in willful suppression of facts as decided by the Honble Supreme Court on various occasions and in particular in the case of Pahwa Chemicals Pvt. Ltd. Vs- CCE (2005 (9) TMI 92 - SUPREME COURT OF INDIA) wherein held that mere failure to declare does not amount to willful mis-declaration or willful suppression. There must be some positive act on the part of the party to establish either willful mis-declaration or willful suppression. All the particulars were culled out only from the respondents record. It is also a fact that when the department culls out a case from the record of the assessee the allegation of suppression is unsustainable. The respondent has raised a specific plea that the Audit parties have visited their unit several times and the Revenue is fully aware of their activities. This fact has not been countered by the Revenue stating that the appellant's record were not inspected and that Audits were not conducted. I find that all the judgements relied upon by the Revenue are inapplicable as in the instant case the availment of cenvat credit was on account of misinterpretation of rules by the appellant and the Revenue had conducted Audits which would go to show that there was in fact no suppression of facts. Thus the appellants are entitled to grant of waiver of penalty.
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