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2015 (10) TMI 620 - AT - Central ExciseArea based exemption - Availment of exemption under notification no. 56/02-CE - quantum of exemption to the assessee in terms of refund/self credit in PLA - Held that:- As per the scheme of this notification, if during a particular month the assessee pays more duty through cenvat credit to that extent, the duty payment through PLA will get reduced and he will get less refund and if the entire duty in respect of the goods cleared during a particular month is paid through cenvat credit, the quantum of refund available would be nil. - Thus, the availability of more credit does not benefit an assessee in any manner and, on the contrary, reduces the refund available to him in terms of this notification. Appellant availed and utilized higher cenvat credit during December, 2006 and March 2007, they paid lesser duty through PLA and to that extent, they got lesser quantum amount of self credit. - Therefore, once this excess cenvat credit, to which they were not entitled, is denied, their entitlement to pay duty through PLA would increase by the same amount and this is what they have done. Once the duty of ₹ 51,40,745/- is paid through PLA, the assessee would be eligible for its self credit in PLA. In view of this, we hold that there was no justification for confirmation of demand of ₹ 51,07,031/- against the appellant and imposition of penalty of equal amount on them. Moreover, when in this case the Assistant Commissioner by an order passed on 17.02.2009 had denied the self credit of ₹ 51,07,031, there was absolutely no justification for the Commissioner to pass another order confirming the demand for the same account and also imposing penalty. - When neither the duty demand of ₹ 51,07,031/- nor the penalty of equal amount under Section 11AC is sustainable, there is no question of recovery of penalty by adjusting it from refund for subsequent merits - Decided in favour of assessee.
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