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2019 (10) TMI 886 - CESTAT MUMBAIIrregular availment and utilization of excess CENVAT credit - inputs - capital goods - typographical error - penalty u/s 11AC - HELD THAT:- It is not the case of Revenue that despite being pointed out by the department about the short reversal of ₹ 50/- the Appellant failed to do the needful nor it is the case of Revenue that they raised this plea before the Adjudicating Authority at the time of hearing. It seems this issue was raised by Revenue before the learned Commissioner for the first time. Had the department raised this shortfall of ₹ 50/- earlier then the Appellant would have paid that amount then and there. It has been pointed out by the learned Chartered Accountant appearing for Revenue that the department in its audit report itself alleged the availment of excess credit amount to ₹ 4,38,389/- only and not the amount of ₹ 4,38,439/-. No reason has been mentioned by the Revenue for mentioning the lesser amount in its audit report. It is the mistake on account of incorrect calculation on the part of the department and Appellant cannot be penalised for it. The Appellant acted fairly and immediately upon being pointed out by the audit party, reversed the excess excess credit availed by them alongwith applicable interest. Imposition of penalty - HELD THAT:- Proviso to Section 11AC(1)(a) , Central Excise Act, 1944 specifically provides that if the assessee pays the duty portion alongwith interest payable u/s. 11AA before the issuance of the show cause notice or within 30 days of issue of show cause notice, no penalty shall be payable by that assessee. In my view since the Appellants have already reversed the entire excess credit availed by them (as pointed out by the audit party) alongwith interest, much before the issuance of the show cause notice, in view of Section 11AC ibid no penalty is payable by them. Appeal allowed - decided in favor of appellant.
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