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Showing 261 to 280 of 14810 Records
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2013 (12) TMI 1506
Issues involved: Stay petitions for waiver of pre-deposit of Central Excise duty on Oxygen consumed in manufacturing final products claiming exemption under Notification No. 67/95-C.E.
Summary:
The judgment by CESTAT AHMEDABAD, delivered by Member (J), addressed three Stay Petitions seeking waiver of pre-deposit of Central Excise duty on Oxygen consumed in the manufacturing of final products. The duty was confirmed by the adjudicating authority and upheld by the first appellate authority, stating that the appellant is liable to pay duty on the Oxygen consumed. After hearing both sides and examining the records, it was observed that the appellant extracts Oxygen from ambient air for use in a continuous process without storing it for manufacturing paper pulp. The separation of Oxygen and Nitrogen is deemed a non-marketable product due to the continuous process without compression or storage of Oxygen. Consequently, the appellant established a prima facie case for waiver of pre-deposit, leading to the allowance of the applications and stay of recovery until the appeals are disposed of. The judgment was dictated and pronounced in Court by the Member (J).
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2013 (12) TMI 1505
Issues involved: Disallowance u/s. 40(a)(ia) r.w.s. 194C, Levy of penal interests.
Disallowance u/s. 40(a)(ia) r.w.s. 194C:
The appellant contested the disallowance of payments to lorriwalas under section 40(a)(ia) r.w.s. 194C, arguing that there was no direct contract with the truck drivers as the appellant acted as an intermediary earning only commission. The appellant asserted that since there was no outstanding amount payable at the end of the year, the provision of section 40(a)(ia) should not apply. Additionally, it was emphasized that the appellant did not have any contractual obligations towards the truck drivers, thus negating the applicability of section 194C. The Tribunal noted discrepancies in the assessment, highlighting the lack of evidence establishing a direct contract between the appellant and the truck owners for transportation services. The Tribunal referred to a decision by the Hon'ble Madras High Court emphasizing the necessity to verify the exact nature of the appellant's business to determine the applicability of section 194C. The Tribunal remitted the matter back to the Assessing Officer for further examination and directed the appellant to provide necessary evidence to support its claims.
Levy of penal interests:
The appellant denied liability for penal interest, which was considered after condoning a delay in filing the appeal. The appellant cited reliance on an Income Tax Practitioner-cum-Consultant for handling tax matters due to the closure of the partnership firm's business. The delay in filing was attributed to the health issues of the practitioner. The Tribunal, after hearing both parties, condoned the delay and proceeded to address the appeal on its merits. The Tribunal acknowledged the past Tribunal decision on a similar issue for the assessment year 2007-08 and directed the matter to be reconsidered by the Assessing Officer in light of relevant legal provisions and other judicial decisions. The appellant's appeal was allowed for statistical purposes, with the order pronounced on December 30, 2013.
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2013 (12) TMI 1504
Issues involved: Appeal against the judgment and order of the Customs, Excise and Service Tax Appellate Tribunal regarding modification of miscellaneous orders u/s Rule 41 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 and the power to review orders passed in appeal u/s Section 35C of the Central Excise Act, 1944.
Issue 1: Power of Tribunal to Modify Miscellaneous Orders
The appellant filed an appeal before the Tribunal and later applied for waiver of pre-deposit. The Tribunal, after evaluating the application, found that the appellant did not provide evidence for financial hardships and the plea of limitation was prima facie untenable. Consequently, the Tribunal determined the appellant's liability at Rs. 60 lakhs, of which Rs. 35.25 lakhs were already paid. A balance of Rs. 24 lakhs was directed to be pre-deposited. Subsequently, the appellant sought modification of the stay order through a Miscellaneous Application. The application was made under Rule 41 of the Customs, Excise and Services Tax Appellate Tribunal (Procedure) Rules, 1982, allowing the Tribunal to make necessary orders for the ends of justice. The appellant argued that this rule empowered the Tribunal to ensure justice akin to inherent powers. However, the Court held that this rule cannot be used to entirely overturn the original order, as it would amount to a review of the judgment. The Court emphasized that the rule is not meant to challenge a previous judgment that was not legally contested and should only apply in cases of evident mistakes or miscalculations. Therefore, the Court dismissed the appeal, stating that the rule does not require further interpretation.
Issue 2: Review of Orders Passed in Appeal
The Court concluded that the power granted to the Tribunal under Rule 41 cannot be utilized to annul a previous judgment and order that was not challenged in accordance with the law. The Court clarified that this rule is applicable in cases where there are clear errors in the record or miscalculations. It was emphasized that the suggested questions of law did not present substantial legal issues, and the rule itself does not necessitate additional interpretation. Consequently, the appeal was dismissed without any costs.
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2013 (12) TMI 1503
Issues involved: Appeal by Revenue regarding imposition of penalty for non-payment of interest u/s 11AB on differential duty paid by respondent.
Summary:
The respondent, a manufacturer of motor vehicle parts, paid Central Excise duty on escalation amount received from customers but did not pay interest u/s 11AB at that time. The department later demanded interest and penalty. The Assistant Commissioner confirmed the interest demand but did not impose penalty. The Revenue filed a review appeal seeking penalty imposition. The Commissioner (Appeals) dismissed the appeal, stating that the impugned order had merged with a previous order. The Revenue appealed this decision.
The Revenue argued that the impugned order dismissing their appeal was incorrect, citing relevant Tribunal judgments. However, the Tribunal found that penalty was not imposable under Rule 25 for non-payment of interest on duty paid voluntarily by the respondent. The dispute was only regarding interest on the duty paid, and penalty was not warranted as per the provisions of the Act. Therefore, the Revenue's appeal was dismissed.
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2013 (12) TMI 1502
Issues involved: Eligibility for Cenvat credit in respect of various items including steam jointing sheets, champion CAF, style asbestos rope, HR/SS plate, SS drain traps, SS hose assy, swivel flange, SS flexible hose, SS sleeve holding, MS box with cover plate, garment stand, SS rack, glass material/spherical vessel, and MS sheets.
Summary:
The dispute in this case revolves around the eligibility for Cenvat credit concerning multiple items. The Commissioner (Appeals) upheld the denial of Cenvat credit amounting to Rs. 2,08,231 on the basis that the items in question do not meet the definition of capital goods under Rule 2(a) of the Cenvat Credit Rules, 2004, as they do not align with the specified Chapter Headings. Two appeals have been filed against this decision.
Upon hearing both sides, the appellant's counsel argued that the impugned order failed to consider the actual uses of the items. It was contended that the items either served as component parts of capital goods, were used in the construction of tanks covered by the definition of capital goods, or were utilized for the repair of capital goods. Reference was made to a Tribunal judgment in support of this argument.
On the other hand, the Jt. CDR argued that none of the disputed items qualified as capital goods and supported the Commissioner (Appeals)' decision to deny Cenvat credit.
Upon review, it was observed that the disputed items were used in conjunction with boilers, reactors, tanks, or for repair purposes. Items used for repair and maintenance, as well as those preventing steam leakage, were deemed eligible for Cenvat credit based on precedents from the Hon'ble Chhattisgarh High Court and the Hon'ble Karnataka High Court. Steel items used for fabrication of movable storage tanks were also considered eligible. The impugned order was set aside as it failed to delve into the specific uses of each item, leading to a remand for fresh adjudication by the original authority.
This decision was dictated and pronounced in an open court setting.
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2013 (12) TMI 1501
Refund of SAD - N/N. 102/2007-Cus., dated 14-9-2007 - rejection on the ground of time bar - Held that: - there is reasonable cause for filing the refund claim on 1-12-2008 and the delay is properly explained, which is only of 3 days beyond control, and the same is hereby condoned. The matter is being remanded to the adjudicating authority to consider the claim of refund on merits - appeal allowed by way of remand.
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2013 (12) TMI 1500
The High Court of Madras dismissed the Civil Miscellaneous Appeal as there was no representation from the assessee, and the appeal was based on a common order passed by the Customs, Excise, and Service Tax Appellate Tribunal. The appeal was dismissed following a previous decision by a Division Bench of the Court.
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2013 (12) TMI 1499
Issues involved: Determination of assessable value for Central Excise duty on goods manufactured by job worker for Cadbury India Ltd., inclusion of post-manufacturing expenses in the declared price, waiver of pre-deposit and stay against recovery.
Assessable value determination: The appellants, engaged in manufacturing chocolates for Cadbury India Ltd. as a job worker, filed declarations for assessment under Rule 10A of Central Excise Valuation Rules. The Department disputed the declared price, claiming it did not include certain elements like Octroi, transportation charges, and cheque discounting charges. Recovery proceedings were initiated based on actual costs, proposing duty collection on the differential value.
Inclusion of post-manufacturing expenses: Impugned orders held that post-manufacturing expenses are not deductible under Section 4 of the Central Excise Act, 1944. The Department argued that the appellants did not cooperate, failing to provide necessary details despite summonses and letters. However, the appellants cited communication from Cadbury India Ltd. specifying excluded items and contended that the demand quantification was based on details provided.
Waiver of pre-deposit and stay against recovery: The learned counsel pointed out a previous Tribunal decision granting unconditional waiver of pre-deposit in a similar case. The Department argued against following the precedent due to lack of cooperation from the appellants and Cadbury India Ltd. The Tribunal emphasized the need for verification by the Department regarding the prices at which goods were sold by Cadbury India Ltd. and concluded that the job worker cannot be expected to conduct such investigations. Consequently, the Tribunal decided to grant waiver of pre-deposit and stay against recovery during the appeal process, following the precedent decision.
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2013 (12) TMI 1498
Issues involved: Stay petition for waiver of pre-deposit of duty amount on distilled water cleared in combi-pack.
Summary:
Issue 1: Interpretation of conflicting views within the department
The appellant sought waiver of pre-deposit of duty on distilled water cleared in combi-pack, citing conflicting views within the department regarding similar cases. One appellate authority ruled against the appellant, while another upheld the order for a competitor. The appellant argued that in cases with differing views at the lower level, unconditional waiver is customary.
Issue 2: Classification of product in combination pack
Upon reviewing the records, it was noted that the appellant clears a combi-pack of Rabipur vaccine with distilled water included. The adjudicating authority classified the product under Chapter 30, which was deemed correct prima facie. Given the concurrent findings in a competitor's case, the appellant was granted a waiver of the pre-deposit amount, with recovery stayed pending appeal disposal.
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2013 (12) TMI 1497
Issues involved: Penalty imposed under u/s 114(iii) of the Customs Act, 1962 for connivance in over-invoicing and fraudulent exports.
Summary:
The case involved Shri R.K. Goyal, Smt. Geeta Goyal, Directors of M/s. Bronze Logistics Ltd. & M/s. Bronze Logistics Pvt. Ltd., who were penalized under u/s 114(iii) of the Customs Act, 1962 for their alleged involvement in over-invoicing and fraudulent exports conducted by M/s. S.S. Enterprises and other firms. The appellants challenged the penalty, claiming they did not have any transactions with the implicated firms. The Revenue relied on bank statements showing financial transactions between the appellants and M/s. S.S. Enterprises as evidence of their involvement. However, the appellants denied any role in the fraudulent transactions, and no direct evidence implicated them. The Tribunal found the presumption against the appellants to be unsubstantiated, granting them a waiver from pre-deposit of penalties and stay on recovery during the appeal process.
In the detailed analysis, the appellants argued that their statements under Section 108 did not acknowledge any involvement with M/s. S.S. Enterprises and other firms, contrary to the bank statements' indications. The Revenue failed to provide corroborative evidence linking the appellants to the fraudulent exports, solely relying on financial transactions as proof of complicity. The Tribunal noted the absence of direct accusations from the exporters or any admission of guilt by the appellants, leading to the conclusion that the penalty imposition lacked a solid foundation. Consequently, the Tribunal granted the appellants unconditional waiver from pre-deposit of penalties and stayed the recovery process pending the appeal's resolution.
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2013 (12) TMI 1496
Issues involved: Revision petitions against the order passed by the Karnataka Appellate Tribunal regarding the tax rate applicable to goods sold to MESCOM by the assessee.
Summary:
The assessee supplied iron and steel goods to MESCOM by bending them according to MESCOM's specifications. The assessing authority considered this as manufacturing activity and levied tax at 12.5 per cent under a residuary entry. The assessee appealed, and the Karnataka Appellate Tribunal held that the bending process did not amount to manufacturing activity, and the goods remained declared goods, thus tax liability was only at four per cent. The High Court, after reviewing the orders and evidence, agreed with the Tribunal's decision based on a previous case law precedent. The Court dismissed the revision petitions, ordered the tax refund to the assessee, and imposed interest for non-compliance.
In the detailed judgment, the High Court emphasized that the process of bending iron and steel goods did not result in the creation of a new product, as the goods remained in the same declared goods category even after the bending process. Citing a previous case, the Court clarified that unless the goods transformed into new goods at the time of sale, they should be taxed based on their original declared goods status, not as residuary goods. The Court found no merit in the petitions and upheld the Tribunal's decision to grant relief to the assessee.
The High Court dismissed the revision petitions and ordered the tax refund to the assessee within one month. In case of non-compliance, the authority was directed to pay interest at 12 per cent, to be collected from the party failing to refund the tax promptly.
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2013 (12) TMI 1495
Issues involved: Assessment of value added tax on annual maintenance contract turnover, violation of principles of natural justice.
Assessment of VAT on AMC turnover: The assessee, engaged in computer hardware and software sales, provided annual maintenance contract (AMC) services and paid service tax on 90% of AMC turnover. Authorities levied VAT on 10% of turnover, later increased to 75% based on customer statements. The petitioner argued that VAT should not apply to service contracts, and the order lacked basis and violated natural justice principles.
Principles of natural justice: The petitioner contended that the authorities' decision to increase VAT to 75% without providing opportunity for cross-examination or explanation based on customer statements was unjust. The government advocate defended the decision, stating each year's assessment is independent and the 75% VAT was justified based on investigations.
Judgment: The court noted the petitioner's consistent payment of VAT on 10% of turnover and service tax on 90%, as per pre-2005 Supreme Court judgment. Authorities' reliance on customer statements to increase VAT to 75% was deemed unjust without petitioner's input or cross-examination. The court directed authorities to provide all collected statements and materials to the petitioner, allowing for response and cross-examination, and set aside the tax, interest, and penalty. The petitioner was granted a refund and instructed to appear for assessment proceedings within three months.
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2013 (12) TMI 1494
Waiver of pre-deposit - Refund claim - finalization of provisional assessment - amendment in Section 14 of the Customs Act, 1962 for the determination of export duty - Circular dated 10-11-2008 - Held that:- Undisputedly, the relevant provision of Section 14 had been amended with effect from 11-5-2007 adopting the concept of ‘transaction value’ applicable to the goods meant for both export and import. Also, it is not in dispute that the Board has issued a Circular on 10-11-2008 clarifying certain aspects of Section 14 of the Customs Act, 1962, after introduction of duty on export of steels.
The method of assessment adopted by the Paradeep Commissionerate, taking the FOB price not as cum-duty price but as assessable value, has not been in accordance with the said Circular - waiver of pre-deposit allowed - petition allowed.
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2013 (12) TMI 1493
Shortage of goods - total shortage of 216.447 MT of M.S. Bars and Angles (final products) from the recorded balance was noticed - shortage stand detected on the basis of average method - demand of duty with penalty - Held that: - In the absence of any corroborative evidences to prove clandestine removal, the fact of such shortages computed on the basis of average method cannot be held to be relatable to clandestine activities. Further, there is no admission in the statement of the partner as regards clandestine removal.
It is well settled law that clandestine activities are required to be proved by sufficient and positive evidences. The same cannot be upheld on the basis of doubts - appeal rejected - decided against Revenue.
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2013 (12) TMI 1492
Issues involved: Determination of liability to pay Central Excise duty and interest u/s 11AB of the Central Excise Act, 1944.
Summary:
Issue 1: Liability to pay Central Excise duty and interest
The respondent was engaged in cotton yarn production and was liable to pay Central Excise duty for the period from September 2001 to February 2002. A show cause notice was issued, demanding duty and interest u/s 11AB. The Order-in-Original confirmed the interest demand, which was challenged by the respondent in Appeal No. E/1057/2004 before the Appellate Tribunal. The Tribunal set aside the interest demand, leading to the present Civil Miscellaneous Appeal by the Commissioner of Central Excise.
Issue 2: Interpretation of Section 11AB of the Central Excise Act
The key question was whether the respondent was liable to pay interest u/s 11AB for belated payment of Central Excise duty. The appellant argued that despite the duty being paid late, interest was still applicable as per the Act. The respondent contended that interest could only be levied if the quantum of tax was quantified in the show cause notice.
Court's Decision:
The Court analyzed Section 11AB, which allows for interest on belated payment of duty. Despite the respondent admitting to late payment of tax, the Tribunal had erroneously set aside the interest demand. Referring to a Supreme Court decision, the Court emphasized that interest is leviable on delayed payment of duty regardless of the reason. Therefore, the Court allowed the appeal, setting aside the Tribunal's order and ruling in favor of the appellant's right to levy interest on the Central Excise duty for the mentioned period.
In conclusion, the Civil Miscellaneous Appeal was allowed without costs, the Tribunal's order was set aside, and the appellant was granted the authority to impose the appropriate rate of interest on the Central Excise duty from September 2001 to February 2002.
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2013 (12) TMI 1491
Issues Involved: Refund claim u/s Central Excise Act, 1944, deduction of penalty from refund amount, appropriateness of penalty deduction, adjustment of duty confirmed against appellant.
Refund Claim u/s Central Excise Act, 1944:
The appellants, engaged in the manufacture and clearance of non-ferrous metals, filed a refund claim for unutilized balance in PLA account after factory closure. The adjudicating Authority sanctioned a refund but appropriated an amount against recovery from a previous order. The Commissioner (Appeals) upheld the deduction citing relevant case laws and previous penalties imposed on related parties. The appellant contested the deduction and relied on judgments. The Commissioner found the deduction justified and upheld it.
Deduction of Penalty from Refund Amount:
The lower authorities had deducted an amount towards penalty imposed on an employee of the appellant. The Commissioner found this deduction unjustified as the penalty was personal and should be recovered from the employee, not the refund claim. The Commissioner directed the lower authority to refund the deducted amount of &8377; 1 Lakh to the appellant.
Appropriateness of Penalty Deduction:
The Commissioner determined that the adjustment of penalty imposed on the employee from the refund claim was improper. The penalty being personal in nature should not have been deducted from the refund amount due to the appellant. The Commissioner held that the adjustment was not justified and ordered the refund of the deducted amount to the appellant.
Adjustment of Duty Confirmed Against Appellant:
The appellant did not contest the adjustment of &8377; 50,000 towards duty confirmed against them. The Commissioner noted this and directed the lower authority to refund &8377; 1 Lakh to the appellant, as the adjustment of the penalty imposed on the employee was deemed inappropriate. The appeal was disposed of accordingly.
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2013 (12) TMI 1490
Issues involved: Classification of Gypsum Plasters under Tariff Item 2520 vs. Tariff Heading 38.24, time-barred demand, eligibility for waiver of pre-deposit of duty, interest, and penalty.
Classification Issue: The dispute centered around the classification of Gypsum Plasters, with the applicants claiming classification under Tariff Item 2520 of the Central Excise Tariff and clearing it at a nil rate of duty. The Revenue, however, proposed classification under Tariff Heading 38.24, leading to a demand for duty for a specified period. The applicants argued that Gypsum Plasters fall under Tariff Entry 2520 as it covers Gypsum, Anhydrite, and plasters consisting of calcined gypsum or calcium sulphate, thus asserting that the demand was not sustainable.
Time-barred Demand: The applicants contended that the demand was time-barred, emphasizing that they had consistently disclosed to the Revenue that Gypsum Plasters were manufactured from duty-paid Phosphogypsum. They argued that there was no intent to evade payment of duty, making the allegation of suppression unsustainable.
Waiver of Pre-deposit: The applicants sought a waiver of pre-deposit of duty, interest, and penalty, stating that they had already paid a significant amount. They claimed entitlement to credit of duty paid on the raw material, Phosphogypsum, and cum-duty benefit on input credit. After considering these factors and the amount already deposited, the remaining duty was calculated to be approximately Rs. 2.52 crores. The Tribunal found that the applicants had not established a case for total waiver of dues due to lack of disclosure regarding the manufacturing process of Phosphogypsum. However, they were directed to deposit Rs. one crore within eight weeks, following which pre-deposit of the balance of duty, interest, and penalties was waived, with recovery stayed for the appeal hearing.
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2013 (12) TMI 1489
The High Court of Madras dismissed writ petitions challenging an order by the Customs, Excise and Service Tax Appellate Tribunal. The petitioners were given liberty to raise all points before the Tribunal except the legal issue concluded in a previous case.
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2013 (12) TMI 1488
Issues Involved:
1. Condonation of Delay
2. Administrative Procedure and Delay Explanation
3. Impact on Revenue and Public Interest
4. Precedents and Judicial Approach
5. Imposition of Costs
Summary:
1. Condonation of Delay:
The State of Gujarat filed an application u/s 5 of the Limitation Act to condone a delay of 331 days in preferring a tax appeal against the order dated 6/8/2012 by the Gujarat Value Added Tax Tribunal.
2. Administrative Procedure and Delay Explanation:
The applicant explained that the delay occurred due to the administrative procedures required to file a tax appeal, including obtaining opinions from various officers, getting approval from the Finance Department, and preparing the appeal by the Government Pleader's office. The learned AGP argued that the delay was not intentional and was a result of the procedural requirements.
3. Impact on Revenue and Public Interest:
The AGP emphasized that the impugned order involved a significant revenue amount of approximately Rs. 4.51 Crores, which could adversely affect similar cases. The delay, if not condoned, would deprive the applicant of presenting the case on merits, which would not be in the larger public interest.
4. Precedents and Judicial Approach:
The court referred to several precedents, including the Supreme Court's decision in CIT vs. West Bengal Infrastructure Development Finance Corporation Ltd., which emphasized that cases with significant tax implications should be decided on merits rather than being dismissed on technical grounds of delay. The court also cited the Division Bench's decisions in similar cases where delays were condoned due to substantial revenue stakes and procedural delays inherent in government functioning.
5. Imposition of Costs:
The court acknowledged the respondent's opposition, citing the decision in Postmaster General vs. Living Media India Ltd., but noted that the decision in West Bengal Infrastructure Development Finance Corporation Ltd. was more pertinent due to its relevance to tax matters. The court concluded that the delay should be condoned by imposing a reasonable cost.
Conclusion:
The application was allowed, and the delay was condoned by awarding a cost of Rs. 10,000 to be paid to the respondent within six weeks. The main Tax Appeal was scheduled for admission hearing on December 12, 2013.
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2013 (12) TMI 1487
Penalty u/s 11AC - difference between the amount of Cenvat credit details shown in the return filed by the assessee with the department and the Cenvat credit register maintained by the assessee - Held that:- There was mistake in data entry and errors occurred. The appellant as submitted seems to have paid the same amount twice - Even if the credit had been taken wrongly, apparently it was because of some errors in data entry and not with an intention. That being the position, penalty imposed under Section 11AC cannot be sustained - appeal allowed.
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