TMI Blog2013 (11) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... f fraud and suppression with intention to evade Central Excise duty, therefore the correct provision applicable will be Section 11A(1A) of Central Excise Act, 1944, where appellant was also required to pay 25% penalty imposable under Section 11AC of Central Excise Act, 1944 along with interest applicable under Section 11AB of Central Excise Act, 1944 - the adjudicating authority also gave them an option to pay reduced penalty of 25% under Section 11AC of Central Excise Act, 1944 if the payments are made within one month from the date of receipt of OIO - no such option was exercised by the assesse – Decided against assessee. - Appeal No.E/1190/2009 - - - Dated:- 17-9-2013 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal was admissible and accordingly no penalty is attracted in this case. 2.2 So far as charging of interest is concerned, he argued that the CENVAT Credit taken was never utilized as appellant always has enough credit balance and no interest is leviable in view of the following case laws:- a) CCE Vs. Maruti Udyog Ltd. [2007 (214) ELT A50 (SC)] b) CCE Vs. Maruti Udyog Ltd. [2007 (214) ELT 173 (P H)] c) CCE Vs. Dynaflex Pvt.Ltd. [2011 (266) ELT 41 (Guj.)] d) CCE Vs. Rana Sugar Ltd. [2010 (253) ELT 366 (All.)] e) CCE Vs. Sweet Industries [2011 (264) ELT 349 (Guj.)] f) Sterlite Optical Technologies Ltd. Vs. CCE [2012 (282) ELT 392 (Tri-Ahmd)] 3. Dr.J. Nagori, (A.R.) appearing on behalf of the Revenue argued that Larger Bench in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tems like Cement and steel used for making support structures of capital goods was admissible. Therefore, no penalty needs to be imposed upon the appellant under Rule 15 of CENVAT Credit Rules, 2004 for the period when the issue was disputed. No penalty has been imposed upon the appellant by the adjudicating authority under Section 11AC of Central Excise Act, 1944. Accordingly, penalty of Rs.15 lakhs imposed upon the appellant under Rule 15 of CENVAT Credit Rules, 2004 is set aside. 4.2 So far as charging of interest under Rule 14 of CENVAT Credit Rules, 2004 is concerned, appellant relied upon the case laws as detailed in Para 2.2 above. Ld. A.R. has relied upon the decision of Hon ble Supreme Court in the case of UoI Vs. Ind-Swift Labor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d provision from being declared unconstitutional or illegal. Rule 14 specifically provides that where CENVAT credit has been taken or utilized wrongly or has been erroneously refunded, the same along with interest would be recovered from the manufacturer or the provider of the output service. The issue is as to whether the aforesaid word OR appearing in Rule 14, twice, could be read as AND by way of reading it down as has been done by the High Court. If the aforesaid provision is read as a whole we find no reason to read the word OR in between the expressions taken or utilized wrongly or has been erroneously refunded as the word AND . On the happening of any of the three aforesaid circumstances such credit becomes recoverable al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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