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2021 (5) TMI 849 - AT - Central ExciseCENVAT Credit - capital goods - capital goods were not received into the factory - Penalty - HELD THAT:- On perusal of the final order dated 20-5-2011, the Tribunal has directed officers to visit the assessee’s factory and satisfy themselves as to the availability of the Spectrometer in question. After such verification, it is seen noted in the de novo adjudication order that the capital goods were present in the factory. Thus the allegations raised in the Show Cause Notice that the capital goods were not received in the factory and that the credit availed is wrong is without any factual basis. Further, it can also be seen that the appellant had challenged before the Tribunal the allegation of wrong availment of credit and submitted only that they would not be seeking re-credit of the same for the reason that they had already surrendered the registration of the factory. The authorities below have confirmed the interest on the basis that the appellant has not challenged the demand of wrongfully availed credit. The allegation in the Show Cause Notice is that the assessee did not bring the machine into the factory and suppressed the purchase and receipt of the machine in their factory for which the Show Cause Notice was issued. This allegation is now proved to be wrong after the verification by the Range Officer. In such circumstances, allegation of wrong availment of credit cannot sustain and therefore, the interest thereon also would not sustain. The penalty has already been set aside by the authorities below. The demand of interest by the department alleging wrong availment of credit cannot sustain - Appeal allowed - decided in favor of appellant.
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