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2018 (7) TMI 323 - AT - Central ExcisePenalty u/r 15(2) of the CENVAT Credit Rules - When pointed out, the appellant had reversed the credit along with interest even before the show cause notice was issued to them - suppression of facts or not - Held that:- Penalty is imposable not just when input credit is taken or utilised wrongly but it is imposable when such taking or utilising the CENVAT credit is by reason of (a) fraud, or (b) collusion, or (c) any wilful mis-statement, or (d) suppression of facts, or (e) contravention of any provisions of the Act or Rules with an intent to evade payment of duty. Other cases of wrong availment of CENVAT credit are covered by Rule 15(1) of CENVAT Credit Rules, 2004. It is not in dispute that the credit has been taken wrongly by the appellant. Now the other elements required to fasten the penalty are not evident from the show cause notice - It is a well settled position that suppression of facts must be a positive act. In this case the assessee is not required to show individual items on which he has taken credit in his ER-1s. When something was not required to be declared, he could not have been expected to declare it. This cannot be called a suppression of the fact because there was nothing required to be declared - The other elements such as fraud, collusion, wilful mis-statement are not alleged in the show cause notice. There is no case to impose penalty under Rule 15(2) of the CENVAT Credit Rules r/w Sec.11 AC of the Act - appeal allowed - decided in favor of appellant.
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