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2017 (11) TMI 408 - AT - Central ExcisePenalty u/s 11AC read with Rule 25 - the Commissioner(Appeals) in one Order-in-Appeal has partially allowed and held that the appellant is eligible for CENVAT credit availed on Bill of Entry No.27/2009 dt. 21/01/2009 whereas in another impugned order dt. 25/11/2013, he rejected the appeal of the appellant - Held that: - there is no suppression on the part of the appellant. In fact, the appellant himself voluntarily gave intimation to the Range Officer regarding the purchase of the vessel vide letter dt. 18/03/2009 on which the Department has started the enquiry and thereafter issued SCN. Thereafter the appellant paid the duty of ₹ 1,37,295/- on 22/01/2011 and paid ₹ 1,65,464/- from CENVAT credit - non-payment of duty, non-obtaining of Central Excise registration, not following Central Excise registration procedures etc. cannot be considered as fraud, collusion or suppression of facts unless there is a conscious or deliberate withholding the information on the part of the assessee - penalty u/s 11AC read with Rule 25 set aside. The second impugned order dt. 25/11/2013 passed by the Commissioner(Appeals) is not sustainable in law as the earlier Commissioner(Appeals) has already allowed the CENVAT credit of ₹ 14,74,189/- on the Bill of Entry dt. 27/01/2009 and there was no need to issue the fresh SCN and denial of CENVAT credit. Appeal allowed - decided in favor of appellant.
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