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2023 (1) TMI 688 - AT - Central ExciseCENVAT Credit - Education Cess and Secondary & Higher Education Cess under the invoice issued by the 100% EOU - appellant’s submission is that the denial of Education Cess was not subject matter of show cause notice - HELD THAT:- From the proposal in the show cause notice, it can be seen that the demand of Cenvat Credit is not only in respect of basic Excise duty but also of Education Cess and Secondary & Higher Education Cess. Therefore, in this fact it cannot be said that the order denying the Cenvat credit on Education Cess and Secondary & Higher Education Cess is travelling beyond the scope of show cause notice. Hence, the demand was rightly made by the adjudicating authority. Accumulation of unutilized credit of Education Cess and Secondary and Higher Education Cess while switching over to the GST regime - HELD THAT:- This fact can be examined at the time of recovery of the amount confirmed in the impugned order. Hence, there are no conclusive finding on the said submission. Penalty imposed on Shri. Suresh Nair employee of the appellant’s Company - HELD THAT:- The issue of correct calculation of Cenvat Credit on the invoice issued by the 100% EOU was always in dispute, therefore, malafide cannot be attributed to the employee of the Company in the facts of the present case. Moreover, he is not beneficiary of any wrong doing by the Company. Accordingly, considering the peculiar facts of the present case, the penalty Shri. Suresh Nair employee of the Company cannot be imposed under Rules 26 of the Central Excise Rules, 2002. Hence, penalty on Shri. Suresh Nair is not sustainable, accordingly, set aside. Appeal disposed off.
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