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2019 (7) TMI 1168 - AT - Central ExciseCENVAT Credit - input found short in the stock - period 2007-08 and from 01.04.2009 to 28.04.2010 - goods written off - demand of interest and penalties imposed - HELD THAT:- The appellant has explained that the shorage is due to writing off of the raw materials in their books of accounts. The department has not adduced any evidence to the contrary. There is no allegation that goods were removed from the factory. In paras 10, 11 and 12 of the order passed by the original authority, the adjudicating authority has stated that the credit has been wrongly availed, since there is shortage of raw materials. When there is shortage of raw materials by writing off, Rule 3(5B) of Cenvat Credit Rules, 2004 would apply. The period involved being prior to 01.03.2013, the demand of interest and imposition of penalties with respect to credit alleged to be wrongly availed in regard to shortage of raw materials cannot sustain and requires to be set aside - decided in favor of assessee. Excess credit availed by the assessee - HELD THAT:- Admittedly, the appellants have availed wrong credit by taking credit twice on the same invoices. Though, the appellants contend that it is an inadvertent mistake, they are liable to pay interest on the wrong credit availed by them till the reversal of the credit. Taking note of the fact that the credit availed by them was reversed on being pointed out, the situation does not warrant imposition of penalties - Penalty set aside. Appeal allowed in part.
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