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2023 (9) TMI 63 - AT - Central ExcisePenalty - suppression of facts or not - Availment of Irregular Credit - HELD THAT:- It is necessary to prove either fraud or collusion or wilful misstatement or suppression of facts or contravention of any of the provisions with intention to evade payment of duty. Unfortunately, none of these ingredients have been invoked in the notices and the impugned order also does not provide any evidences except to state that that the irregular availment of cenvat credit came to light only at the time of audit. The present case is based only on the audit para and there is no iota of evidence to prove either suppression or misdeclaration of facts or contravention of provisions with intention to evade payment of duty. On the other hand, the appellant immediately reversed the credit as and when it was pointed out by the audit officers and the officers clearly noted that interest and penalty are not to be levied. Inspite of these notices were issued after nearly 2 years after the audit observations and reversal of credit. The Hon’ble Karnataka High Court in the case of COMMR. OF C. EX., BANGALORE-I VERSUS GENEVA FINE PUNCH ENCLOSURES LTD. [2011 (1) TMI 746 - KARNATAKA HIGH COURT] where the order of the Tribunal held not to impose penalty, was upheld by the Hon’ble High Court of Karnataka. There are no merit either in the show-cause notices or in the impugned order - appeal allowed.
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