TMI Blog2014 (1) TMI 1650X X X X Extracts X X X X X X X X Extracts X X X X ..... t be irregularity, but continuation of the credit in their books of accounts after filing the insurance claim with the authorities, become irregular, as they knew that the entire quantity of the inputs were not received in their factory. Also, from the records, it is evident that the appellant had availed the insurance claim on the total value of shortage quantity including the CVD amount. Thus, there is an element of suppression in the continuation of credit in their books of accounts, after availing the insurance claim. - Consequently, the imposition of penalty under Section 11AC of the Central Excise Act, 1944 is thus sustainable. - impugned order is set aside to the extent of not allowing the appellant to exercise the option to pay 25% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Act, 1944, read with Rule 15 of the Cenvat Credit Rules, 2004. On adjudication, the Adjudicating Authority had imposed penalty equivalent to the Cenvat credit availed by them under Rule 15 of the Cenvat Credit Rules, 2004. Aggrieved by the said Order, the appellant had preferred an appeal before the ld. Commissioner (Appeals) who upheld the order of the Adjudicating Authority and rejected the appeal filed by the appellant. Hence the present appeal. 3. Ld. Advocate for the appellant submits that initially, they had availed the Cenvat credit on the quantity and the CVD duty, as shown in the Bill of Entry relating to the imported goods. Later, it was found that there was a short receipt of the inputs against the quantity shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Revenue, on the other hand, submits that on receiving the imported materials at their factory, the appellant had availed the Cenvat credit on the CVD paid on the entire quantity of inputs shown in the respective Bills of Entry. But, the appellant had not reversed the proportionate credit, as soon as they filed the insurance claim before the Insurance Company against short receipt of the inputs. Further, he has submitted that even after receipt of the insurance claim, the appellant did not reverse the proportionate Cenvat credit. It was reversed only after being pointed out by the visiting audit party. It is his submission that continuation of availing the credit after the insurance claim was received, was with an intention to avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the insurance claim on the total value of shortage quantity including the CVD amount. Thus, there is an element of suppression in the continuation of credit in their books of accounts, after availing the insurance claim. Consequently, the imposition of penalty under Section 11AC of the Central Excise Act, 1944 is thus sustainable. 6. The second plank of argument of the ld. Advocate is that the appellant were not given an option to pay 25% of the penalty by the Adjudicating Authority, and they were directed to pay the penalty forthwith. The ld. Commissioner (Appeals) has rejected their plea observing that exercising the option to pay 25% of the penalty is statutory one and there should not be any specific order for exercise of such optio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below had availed any option to the assessee to pay duty demand with interest and penalty of 25% of the duty within 30 days from the date of adjudication, and therefore, the Tribunal in its order impugned maintained that the case of the assessee is squarely covered by the explanation to Section 11AC. The Tribunal also noted that the duty determined under Section 11AC(2) was subsequent to the year 2000 and, therefore, the case would be covered by the explanation to Section 11AC of the Central Excise Act. 16. When no option was given by any of the adjudicating authorities after determination for payment of duty, interest and penalty of 25% of the duty, what all Tribunal had done, pursuant to the direction in remand order, was to avail opt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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