TMI Blog2012 (11) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... voices issued by 100% EOU. Whereas there is restriction for taking credit in respect of the inputs received from 100% EOU. This mistake was pointed out by the Revenue and the duty and interest was paid.It cannot be said that there was willful mis-statement or suppression of facts with intent to evade payment of duty as required for imposition of penalty under Section 11AC of the Act - final order of the Tribunal reducing the penalty to Rs. 1 lakh, which has been already paid by the appellants,is not challenged by the appellant. Therefore, appellants are not entitled for refund of the penalty already paid by them. - E/222/2005 - A/726/12/EB/C-II - Dated:- 10-7-2012 - S.S. Kang And Sahab Singh, JJ. Appellant Rep by: Shri J. F. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for appropriation of the amount paid along with interest and for imposition of penalty under Rule 13(2) of the Cenvat Credit Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. 3.2 The adjudicating authority confirmed the demand and appropriated the amount already deposited against the demand and interest and imposed an equal amount of penalty. The appellants filed appeal and Commissioner (Appeals) dismissed the appeal. On an appeal filed by the appellants, the Tribunal vide order dated 22.7.2005 reduced the penalty to Rs. 1 lakh. The Revenue challenged the order passed by the Tribunal reducing the penalty and the Hon'ble Bombay High Court vide order dated 20.3.2012 set aside the order passed by the Tribunal and the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Hon'ble Supreme Court in the case of Rajasthan Spinning Weaving Mills (supra) held as under:- 18. One cannot fail to notice that both the proviso to sub section 1 of section 11A and section 11AC use the same expressions: .by reasons of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, . In other words the conditions that would extend the normal period of one year to five years would also attract the imposition of penalty. It, therefore, follows that if the notice under section 11A (1) states that the escaped duty was the result of any conscious and deliberate wrong doing and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lful mis-statement or suppression of facts with intent to evade payment of duty is essential for imposition of penalty under Section 11AC of the Central Excise Act. From the facts of the case, were find that the appellants were importing inputs and availing the CENVAT Credit of CVD amount is paid. The credit of CVD amount paid by the 100% EOU was availed on the strength of the invoices issued by 100% EOU. Whereas there is restriction for taking credit in respect of the inputs received from 100% EOU. This mistake was pointed out by the Revenue and the duty and interest was paid. 8. In these circumstances, it cannot be said that there was willful mis-statement or suppression of facts with intent to evade payment of duty as required for impo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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