TMI Blog2010 (9) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... lant to pay interest under Rule 12/14 of the Cenvat Credit Rules, 2002/2004 read with Section 11AB of the Central Excise Act on the amount of cenvat credit upto the date of reversal (4-2-2005) Regarding penalty - The assessee cannot be penalized for a lapse/omission/commission which directly resulted from commissions/omissions of an officer of Central Excise - it could not have been alleged that the appellant suppressed with intent to avail inadmissible credit The penalty imposed on them under Rule 13(1)/Rule 15(1) of the said Rules will, however, stand on a different footing - This penalty is on the ground of irregular availment of inadmissible cenvat credit simpliciter - In the result, the impugned order is sustained except in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present appeal. In this connection, ld. Counsel submits that interest, if at all leviable, can be recovered only from the date of utilization of credit and not from the date of taking of the credit. In this connection, ld. Counsel has referred to a statement filed with additional written submissions. This statement shows details of credit and debit in RG23-C Part I and RG23-A Part-II for the year 2004-05. With reference to the opening and closing balance of credits for the calendar months April to December, 2004 (period of dispute), ld. Counsel submits that there was no utilization of a major part of the cenvat credit in question. Ld. Jt. CDR submits that this was not pleaded in the additional written submissions. On a perusal of the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of submitting the records and of being personally heard. 2. The next issue pertains to penalties. One of the penalties imposed on the appellant is under Rule 13(1)/Rule 15(1) of the Cenvat Credit Rules, 2002/2004. The major penalty is under Rule 13(2)/Rule 15(2) of the Cenvat Credit Rules, 2002/2004 read with Section 11AC of the Central Excise Act. Both the penalties are under challenge. Ld. Counsel for the appellant submits that the major penalty was imposed under Section 11AC on the ground of suppression of facts with intention to avail inadmissible credit. It is submitted that nothing was suppressed by the appellant inasmuch as they disclosed all material facts to the Department through ER-1 returns and connected documents periodic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Part-I wherein the materials (MS angles, channels etc.) were specifically named. ER-1 returns filed by the appellant were not filed as a mere formality, but the same was done as per mandatory requirement of law. The Central Excise range Superintendent had the statutory obligation to verify the returns. Had he done so, he would have queried the assessee as to how the aforesaid materials (MS angles, channels etc.) were actually put to use. In this case, apparently, the range superintendent did not embark on any such verification or scrutiny. The assessee cannot be penalized for a lapse/omission/commission which directly resulted from commissions/omissions of an officer of Central Excise. We are therefore of the view that material facts were d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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