TMI Blog2011 (9) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... ent by registered post with acknowledgment due, but neither acknowledgment nor undelivered cover has been received back after service. Under the Rules of the Court, the notices shall be deemed to be served, and thus we proceeded to decide the appeal. In this Central Excise Appeal filed by the department under Section 35-G of the Central Excise Act, following substantial question of law arises for consideration of the Court:- "Whether the penalty under Section 11 AC of the Central Excise Act, 1944, can be exempted when there was suppression of fact and recovery was confirmed under proviso to Section 11 (A) (1) of the Act?" Sri S.P. Kesarwani submits that the Customs Excise and Service Tax Appellate Tribunal has erred in law in ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed the credit with intent to evade payment of duty. The penalty under Section 11 AC is not sustainable. The Hon'ble Rajasthan High Court in the case of UOI vs. T.P.L. Industries Ltd reported in 2007 (214) ELT 506 (Raj.) held that short levy of duty deposited by the assessee before issue of show cause notice, imposition of penalty of equal amount under Section 11 AC of the Act is not maintainable. In the present case, the contention of the appellant that they are eligible for credit and in order to avoid legal complicity, they have deposited the duty long before issue of show cause notice. Hence I do not find any reason for imposition of penalty under Section 11 AC of the Act. Accordingly, penalty is set aside. The appeal is allowed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .60 M.T) of scrap G.C. sheets from M/s.Tata Iron and Steel Co. Ltd, Jamshedpur vide invoice No.10968 dt. 9.10.2001 and invoice No.11075 dated 10.10.2011 respectively, involving Central Excise duty of Rs.23,331.15 and Rs.26,763.57 (Total Rs.50,094.72) respectively. The party No. 1 had availed Cenvat Credit amounting to Rs.50,095/- vide RG 23-C part-II, entry No. 19 and 20 dated 13.10.2011 on the above mentioned 21.60 M.T. of scrap G.C Sheet, which were inadmissible to them since the sheets were intended for use in plant and buildings and as such were not eligible for CENVAT credit as capital goods, when used for building works/office equipment. 1.2.1. On pointing out the same, the Party No.1 promised to reverse the Credit vide their lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide PLA Entry No. 22 dated 14.09.2002. However, interst for the period 13.12.2001 to 14.9.2002 on the amount of Rs.677/- is also liable to be recovered from them (Party No.2) under Section 11AB of the Act ibid." Sri S.P. Kesarwani has relied upon Union of India vs. Rajasthan Spinning and Weaving Mills [2009 (238) ELT 3 (S.C.)] in which the Supreme Court held in para 2 as follows:- "2. What are the conditions and the circumstances that would attract the imposition of penalty under section 11AC of the Central Excise Act ('The Act', hereinafter)? In the two cases before us the Tribunal has taken the view that there was no warrant for levy of penalty since the assessees had deposited the balance amount of excise duty (that was short pai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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