TMI Blog2014 (12) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... f suppression of fact may not be sustained. Levy of penalty - Once suppression or misdeclaration is established, penalty is mandatory. In this case, the show-cause notice alleged suppression and it was stated that the fact of availment and utilization of CENVAT credit have not been intimated to the Department by the assessee in their monthly ER1 returns or in any manner whatsoever and the same amounts to wilfull suppression with an intention to evade payment of duty. There is no finding clearly that the amounts taken as credit in this case were not part of the total amount of CENVAT credit taken in the ER1 by the assessee in any of the records. Further there is no requirement under the law to intimate to the Department of each and every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. On an appeal filed by the Revenue, the Commissioner(Appeals) modified the Order-in-Original and imposed penalty equivalent to the amount of CENVAT credit demanded under Section 11AC of CEA. 2. The learned counsel on behalf of the appellants submits that the appellants had made mistakes and as soon as the omissions were pointed out, immediately the amounts were paid with interest. It was also admitted by the appellants that it was a mistake. He submits that in the first case where inputs were transferred to the other unit, there is no revenue loss at all since credit was not taken in the other unit. In the normal course credit could have been reversed, invoice issued and other unit could have taken credit and therefore there was no rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no indication that the appellant was required to intimate wrong availment of credit. If they were to know that the credit has been wrongly availed and intimated the same, that could have clearly established an intention to evade payment of duty on their part since they would have intimated something which were not required to be intimated. The suppression cannot be alleged in this case since there is no requirement under the law to intimate details of documents on the basis of which credit has been taken. Under these circumstances, the penalty imposed on the appellant cannot be sustained. Accordingly, appeal is allowed with consequential relief if any to the appellant as for as penalty under Section11AC imposed on the appellant. (Ope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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