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2018 (1) TMI 351 - AT - Central ExciseWhether the appellant is liable for penalty under section 11AC for the offence of wrong availment of credit due to the reason that either credit was taken on value or on wrong amount in respect of 42 invoices? Held that: - The nature of the wrong credit is either it was taken in respect of value instead of duty or wrong figures of duty was shown as credit in their Cenvat account. Such mistake can occur only in respect of one or two invoices - in the instant case, mistake has occurred in 42 invoices, this clearly shows gross negligence of the appellant therefore it cannot be said that there is no malafide intention on the part of the appellant merely by making payment alongwith interest before issuance of SCN appellant cannot be absolved from penalty. The department was not in a position to know about wrong availment of credit therefore repeated mistake in taking wrong credit is amount to malafide intention to avail wrong credit - penalty upheld - appeal dismissed.
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