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2022 (12) TMI 971 - CESTAT CHENNAIRecovery of CENVAT Credit - mis-declaration of material facts with intent to evade payment of Central Excise Duty - extended period of limitation - HELD THAT:- It is very clear that the appellant had clearly mentioned that though the credit was taken by mistake belatedly, the credit was not availed by the Mill. This fact has been very conveniently ignored by the Adjudicating Authority who has chosen to incorporate at paragraph 5 of the Order-in-Original only the first portion as to the availment by mistake of credit and the non-reversal of the same. Thus, when the credit itself was not taken / availed by the appellant, there is no scope whatsoever to allege wilful or deliberate intention to evade duty. Unfortunately, the First Appellate Authority has also ignored the plea of the appellant, by upholding the findings of the Adjudicating Authority. The demand of duty by invoking the extended period cannot sustain as the Revenue has not been able to justify the same and therefore, the demand, as confirmed in the impugned order, cannot be sustained. When the demand itself cannot be sustained, the penalty imposed also cannot be sustained for the same reason and consequently, the impugned order to this extent cannot be sustained. Appeal allowed.
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