TMI Blog2006 (9) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents are called absent. 2. In the instant case, the respondents have availed Cenvat credit on capital goods and at the same time also claimed depreciation under the provisions of Section 32 of Income-tax Act. On being pointed out, on the scrutiny of the records, the respondents have reversed the amount of Rs. 3,56,417/- vide RG-23C Part-II on 13-5-2001. A show cause notice was issued to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng aside the penalty amount on the ground of limitation in belated issue of show cause notice and their bona fide act in prompt reversal of Cenvat credit availed. It appears that the department has filed a separate appeal before the Commissioner (Appeals) for less imposition of penalty by the adjudication authority. It was also dismissed by the Commissioner (Appeals) vide order dated 28-3-2005. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opined that imposition of penalty by the adjudicating authority is on high side and needs to be reduced. Considering the other mitigating circumstances, the Commissioner (Appeals) reduced to Rs. 9,000/- as penalty. It is seen form the impugned order that there is no specific finding on the bar of limitation. He has observed that the show cause notice proposed to appropriate the amount of Cenvat, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of fraud, wilful mis-statement, collusion or suppression of facts, or contravention of any provisions of the Act or the Rules made thereunder with intention to evade payment of duty, then, the manufacturer shall be liable to payment penalty in terms of the provisions of Section 11AC of the Act. The learned SDR submits that it is clear case of fraud, wilful mis-statement, collusion or suppressi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the said ratio. Further, I am to observe that the adjudicating authority have discretion in imposing penalty as held in the case of Hindustan Metals Works v. CCE - 2003 (153) E.L.T. A307. 5. In the light of the aforesaid discussions, I find no valid ground in the appeal filed by the Revenue to interfere with the finding of the Commissioner (Appeals), Nashik and confirm the same. In the result, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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