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2022 (12) TMI 522 - AT - Central ExciseLevy of penalty under Rule 15(2) - charge that appellant have availed 100% credit instead of 50% and remaining 50% to be availed in the next Financial year in respect of capital goods - malafide intent or not - HELD THAT:- The appellant has not disputed the excess availment of credit of 50% in advance. However, admitting the same lapse they have reversed the credit and also paid the interest. There is no mala fide can be attributed towards the appellant for this lapse as the appellant is otherwise eligible for Cenvat credit of remaining 50% within a short time i.e. in the next financial year. Therefore, this lapse is inadvertent and cannot be said that there is any intention to evade duty or fraudulent availment of Cenvat credit. In this fact the case should have been concluded, on the basis of appellant’s reversal of excess credit of 50% along with payment of interest thereon which could have resulted into non issuance of SCN and consequently no penalty should have been imposed. Therefore, in this fact since there is no mala fide on the part of the appellant, the case is clearly covered by Section 11A(2B). The penalty is not imposable on the appellant - Appeal allowed - decided in favor of appellant.
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