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2023 (12) TMI 478 - CESTAT AHMEDABADNon imposition of penalty under Rule 15 (3) of Cenvat Credit Rules, 2004 - HELD THAT:- From reading of the above Rule 15(3) it is clear that penalty under the aforesaid rule can be imposed only when the credit has been taken or utilized wrongly by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of these rules or of the Finance Act or of the rules made thereunder with intent to evade payment of service tax - In the facts of the present case all the show cause notices were issued on the same issue subsequent to the show cause notice related to the case which was decided by the Hon’ble Gujarat High Court in the appellant’s own case reported at MUNDRA PORTS AND SPECIAL ECONOMIC ZONE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & CUSTOMS [2015 (5) TMI 663 - GUJARAT HIGH COURT]. The Adjudicating Authority after discussion that since the department was aware of availing the cenvat credit by the respondent and the present show cause notices were issued subsequent to the first SCN therefore, there is no suppression of fact. Hence, the penal provision under Rule 15 (3) is not invokable - Considering the facts and circumstances of the present case, the Adjudicating Authority agreed upon, in as much as the penalty under Rule 15 (3) of CCR, 04 was not imposed. The penalty under Rule 15 (3) is not imposable not only for the reason the demand does not exist but also independently on its merit. Accordingly, the revenue’s appeals are not maintainable hence the same are dismissed.
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