TMI Blog2009 (10) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... eir CENVAT account in January 2005. The department issued a show-cause notice dated 18-11-2005 (a) for appropriation of the above amount towards demand of differential duty under the relevant Modvat/Cenvat Credit Rules read with Section 11A(1) and Section 38A of the Central Excise Act; (b) for recovery of interest under Section 11AB of the Act to the extent of Rs. 3,71,568/- on the aforesaid amount of duty under Rule 12 of the Cenvat Credit Rules, 2001/2002 and Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A(1) of the Act; (c) for imposing penalties under Section 11AC of the Act and Rule 13/15 of the Cenvat Credit Rules, 2001/2002/2004. All these proposals were contested. In adjudication of the dispute, the Asst. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o refers to the relevant allegations and averments contained in the show-cause notice. He has sought to make out a case for the Revenue that the capital goods which were found short in stock should be deemed to have been not received in factory and, consequently, the Modvat/Cenvat credits in question are liable to be held to have been wrongly taken and utilised. In this manner, the DR has opposed the contention that Rule 12 is inapplicable. 3. I have given careful consideration to the submissions. The basic question before me is whether Rule 12 was correctly invoked on the facts of this case. The admitted facts are that, in the annual stock verification made in July 2003, a shortage of capital goods on which Modvat/Cenvat credit of over R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act shall apply mutatis mutandis for effecting such recoveries. 4. It appears from the above provision that the liability to pay interest on an amount of Cenvat credit would arise where such credit had been taken or utilised wrongly. The case of the appellant is that the capital goods were received in their factory and used for manufacture of excisable goods and that, upon receipt of the capital goods in the factory Modvat/Cenvat credit had been rightly taken and subsequently utilised. Conspicuously, in this case, the Revenue has no case to the contra. In the circumstances, in my considered view, Rule 12 was not invocable. Rule 14 of the Cenvat credit Rules, 2004 reads identically and, therefore, the above conclusion is equally applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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