TMI Blog2009 (8) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant had taken an amount of Rs. 1,32,727/- as credit in their RG 23C Part II at Sl. No. 1 dated 22-5-96 on diesel generating set of 320 KVA received under Invoice No. 2276 dated 31-3-96. During August, 2000, the generator broke down and the appellant sold the same without reversing the Modvat credit. The said machine was not fully accounted for as having been disposed off in the manner specified under erstwhile Chapter VAAAA inasmuch as it was not available in the registered premises of the appellant, when the internal audit party of the Central Excise Department visited the unit during February/March, 2001. Hence it was concluded that the said machine has been disposed off without following any central excise procedure, with an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile Central Excise Rules, 1944. 3. Aggrieved by said Order-in-Original, appellants preferred an appeal to the learned Commissioner (Appeals). Learned Commissioner (Appeals) while rejecting the appeal and upholding the Order-in-Original, came to the conclusion that the appellants have erred in not discharging the duty liability on the removal of the capital goods. Hence, this appeal. 4. Learned Counsel appearing on behalf of the appellant submits that they are aggrieved only by the portion that upholds the imposition of penalty by the Adjudicating Authority under Rule 57U(6) of the Central Excise Rules, 1944. It is his submission that as regards the demand of duty and the penalty imposed under Rule 173Q of the Central Excise Rules, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of any of the provisions of the Act or the rules made thereunder, with intent to evade payment of duty, the person who is liable to pay the amount equivalent to the credit disallowed as determined under sub-rule (3) shall also be liable to pay a penalty equal to the credit so disallowed. 8.1 It can be noticed from the above reproduced rule that the said rule can come into play for visiting the appellant with penalty, only if it is seen or recorded that the appellant had taken the credit wrongly with all the ingredients and with intention to evade payment of duty. In the instant case before us, we find that such a situation has not arisen. Since there is no allegation that the appellant had taken wrong credit by reason of fraud, wilful ..... X X X X Extracts X X X X X X X X Extracts X X X X
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