TMI Blog2014 (3) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have claimed drawback and Cenvat credit together. Having operated under a scheme where they had to forgo the Cenvat Credit Rules till November 2005, they are not entitled to take credit for input used in the previous period as opening balance in the return of December 2005. There is no affirmation that during 2005 they were maintaining separate accounts. Rule 15 of the Cenvat Credit Rules, 2004 does not mandate that a penalty equal of the credit regularly taken has to be imposed. The Rule prescribes that penalty not exceeding such credit amount shall be imposed. Therefore, in the facts of the case, I am of the view that penalty of Rs. 90,000/- under Rule 15 of the Cenvat Credit Rules will be sufficient to meet the ends of justice in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g drawback on exported goods. When this was pointed out, the Appellants reversed an amount of Rs. 4,05,084/- in their credit account in March 2005. However, in the ER-I returns December 2005 they showed an opening balance of Rs. 2,53,209/- BED and Rs. 5063/- as education cess in their Cenvat credit account without giving reasons or supporting details in respect of duty paying documents, if any. The Revenue was of the view that this credit taken as an opening balance in the return filed for the month of December 2005 is not eligible to them and they issued a Show Cause Notice for disallowing such credit and recovering it under Section 11A of the Central Excise Act, 1944 read with Rule 14 of Cenvat Credit Rules, 2004. Penalty was also propose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebate claim on one such export which was rejected by the department vide order No. 103/2006 dated 17-7-2006 issued. Assistant Commissioner of Central Excise, Meerut-I. They submit that though they did not file any rebate claims in respect of goods exported. The contention is that since they were not required to pay excise duty on goods exported and since they have not claimed rebate on excise duty shown to be paid using the disputed Cenvat credit, there is no loss that has been caused to the Revenue to the disputed Cenvat credit. Therefore the demand for the disputed amount from them is not maintainable. Further they also contested that the penalty imposed on them is under Rule 15 of Cenvat Credit Rules read with Section 11AC of Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory under ARE-I may not be sufficient to prove that the goods were exported and that such export was made without claiming drawback. His submission is that in the facts and circumstances of the case, it cannot be held that the goods cleared for export during December 2005 and Jan. 2006 were actually exported and exported without claiming drawback of excise portion of drawback. So he argues that contention of the Appellants have no merits. 5. I have considered submissions on both the sides. I find that the credit taken in ER-I return of December 2005 for inputs received during Feb. and March 2005 is illegal for the reason that during the said period, the Appellants were required to maintain separate account of inputs used in the manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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