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2023 (5) TMI 432 - AT - Central ExciseLevy of penalty under Rule 15(2) of the Cenvat Credit Rules read with Section 11AC of the Central Excise Act - CENVAT Credit on additional duty paid on capital goods under EPCG scheme - availment of benefit of Notification No. 97/2004 dated 17.09.2004 and Notification No. 64/2008 dated 09.05.2008 thereby the capital goods imported - HELD THAT:- From the entire findings recorded in the impugned order, we do not find any reason by which it could have been concluded that the case of willful suppression/misstatement, collusion etc. has been made out against the appellant. The mistake committed by the appellant could have been an inadvertent mistake. In the case of Rajasthan Spinning and Weaving Mills [2009 (5) TMI 15 - SUPREME COURT] Hon’ble Supreme Court has clearly stated that without proving the existence of such ingredients, penalty under Section 11AC should not have been imposed. In the present case the appellant has, on being pointed out, paid the entire amount of the credit wrongly taken along with interest much prior to the issuance of show cause notice. On being informed, the issue should have been settled under Section 11A(2B) of the Central Excise Act - Reliance placed in the decision in the case of COMMISSIONER OF CENTRAL EXCISE-I VERSUS GAURAV MERCANTILES LTD. [2005 (8) TMI 120 - BOMBAY HIGH COURT] where it was held that Factual matrix reveals that the show cause notice was issued on 19-4-2002 whereas entire amount of duty and penalty was paid on 31-1-2001 and 1-9-2001. It is thus clear that the entire duty liability was paid prior to the issuance of show cause notice. The order of the Commissioner to the extent of imposition of penalty under Rule 15(2) of the Cenvat Credit Rules read with Section 11AC of the Central Excise Act cannot be upheld. Appeal allowed in part.
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