2013 (11) TMI 741

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..... anufacture of Moulded Chairs, Seats, Backs and wooden furniture. The appellant availed CENVAT credit of duty paid on inputs, capital goods and service tax paid on input services. A portion of tee nuts imported by the appellant for clear as such for the domestic market. However these inputs have been taken into their CENVAT credit account. While clearing the same, the appellants paid duty at the rate applicable for the item as per Central Excise Tariff during the relevant time. 3. During a visit of the officers, it was found that this was a wrong procedure and actually the appellants should have reversed the actual amount of credit taken. The officers calculated the amount short paid as Rs. 46,267/- during the period from April 2006 to Febr .....

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..... y and applied the Rule wrongly. In the self assessment regime, an assessee is expected to calculate their liability correctly and do the assessment correctly and failure to do so would attract penal provisions and therefore penalty has been imposed correctly. He also submits that appellant has clearly made a misstatement in view of the fact that there was duty payment on the basis of transaction value which is not correct and the consequences will have to be faced by the appellants. 6. I have considered the submissions made by both the sides. I find that even before issue of show-cause notice, the appellant deposited an amount to cover the interest and a duty liability without waiting for show-cause notice. Such amount deposited by the app .....

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..... Obviously appellants have not applied the Rule relating to clearance of inputs as such correctly in this case. Therefore penalty of Rs. 5,000/- imposed under Rule 15(1) of CENVAT Credit Rules 2004 has to be upheld and accordingly upheld. Further the submission made by the learned counsel that they are entitled to refund of the excess amount paid before the issue of show-cause notice is valid. This is because according to Section 11A(2B) itself, if the amount paid by the appellant is subject to verification and in this case issue of show-cause notice invoked extended period it is obligatory for the department to refund the amount which has been deposited in excess. Accordingly the revenue is bound to refund the amount. 8. The stay applicati .....

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