TMI Blog2014 (7) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... terest also would not arise and therefore the demand for interest also has to be set aside. Penalty u/s 11AC - Held that:- CENVAT credit would not have been demanded and interest also would not have been demanded. The penalty under Rule 57AH read with Section 11A is imposable only when suppression of facts, omission etc. invoked and demand for CENVAT credit is confirmed. When there is no demand for CENVAT credit under the extended period by invoking Rule 57AH(2), imposition of penalty under Section 11AC may not be imposable. At this stage, it would be appropriate to take note of the fact that penalty of ₹ 10,000/- under Rule 173Q was also imposed against the appellant which is not at all challenged. That being the position, penalty under 173Q can be attributed to the manipulation of the invoice done by the store clerk and therefore, in my opinion, non-imposition of penalty of ₹ 50,000/- on the appellant by this Tribunal is correct - Penalty cannot be sustained - Decided in favour of assessee. - E/238/2004-SM - Final Order No .27020/2013 - Dated:- 28-11-2013 - Shri B.S.V. Murthy, J. For the Respondent: Mr. Ganesh Haavanur, Addl. Commissioner(AR) JUDGEMEN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tilized and duty had been paid and only difficulty was the change of the name by the store clerk. However, Commissioner(Appeals) confirmed the demand for interest and reduced the penalty equal to CENVAT credit imposed to ₹ 50,000/-. The appellants filed an appeal before the Tribunal and this Tribunal set aside the impungned order of Commissioner(Appeals) and thereby the demand for interest and imposition of penalty of ₹ 50,000/- were set aside. Revenue went in appeal against this decision before the Hon ble High Court of Karnataka and Hon ble High Court in their order dt. 22/07/2011 in Central Excise Appeal No.30/2007 set aside the order of this Tribunal and directed the Tribunal to pass fresh orders in accordance with law. 2. Today when the matter was called, nobody is present on behalf of the appellants and since the appeal had been filed before the Hon ble High Court and Hon ble High Court has passed the order consequent to that appeal, I take up the matter for decision. 3. Hon ble High Court while remanding the matter has made the following observation:- 9. We have given careful consideration to the contentions of the learned counsel appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This miscellaneous application was allowed and thereafter only this Tribunal had proceeded to consider the appeal filed by the appellants and had set aside the demand for interest and imposition of penalty. At this stage learned AR submits that this amendment was also set aside by the Hon ble High Court. For this purpose, he relies upon the introductory paragraph of the Hon ble High Court s order wherein the Hon ble High Court took note of the fact that the appeal was filed by the Revenue challenging the miscellaneous order allowing the miscellaneous application amending the grounds of appeal as well as the order of the Tribunal. However, I take note of the fact that while remanding the question of law, the Hon ble High Court did not frame a question of law relating to the issue as to whether the Tribunal could have allowed the miscellaneous application filed by the party to amend the grounds of appeal to challenge the penalty of ₹ 50,000/-. Therefore, it cannot be said that the miscellaneous order has been set aside or there is a clear observation that the miscellaneous application could not have been allowed. However, I take note of the fact that the Hon ble High Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of Joja and the credit taken in the name of Vivada ----------------- would not have been admissible which is another factor in favour of the assessee in this case. That being the position, the Commissioner s decision to allow the credit is perfectly fair and judicious. 7. Next question that arises is whether the penalty of ₹ 50,000/- was imposable or not. Honbble High Court has observed that the Tribunal did not examine the facts and circumstances and did not analyse the same before setting aside the penalty. I have already analysed the situation and the relevant legal provisions and have come to the conclusion that the CENVAT credit would not have been demanded and interest also would not have been demanded. The penalty under Rule 57AH read with Section 11A is imposable only when suppression of facts, omission etc. invoked and demand for CENVAT credit is confirmed. When there is no demand for CENVAT credit under the extended period by invoking Rule 57AH(2), imposition of penalty under Section 11AC may not be imposable. At this stage, it would be appropriate to take note of the fact that penalty of ₹ 10,000/- under Rule 173Q was also imposed against the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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