TMI Blog2015 (7) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... t to evade payment of tax. So, in the present case, imposition of penalty under Section 11AC of the Act, would not be warranted. The nature of availment of excess credit as revealed from the statement of Smt. Beena Thomas, that in some cases, they have availed the credit on the assessable value to the extent of ₹ 1.04 Crores. The Appellant had taken credit twice on the same invoice. Taking into account of the conduct of the Appellant for excess availment of credit for more than ₹ 1 Crores, we find that it is a fit case to impose penalty under Rule 15(1) of CENVAT Credit Rules. 2004. Regarding the penalty imposed on other Appellants, we find that they are the employees of the Appellant Company. There is no evidence of direct invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,27,73,273.00 and to appropriate the amount of ₹ 1,14,01,814.00, which was already paid by them. It has also demanded interest and to impose penalty on the Appellant No.1 and also to impose penalties on other Appellants. The Adjudicating Authority confirmed the demand of CENVAT Credit alongwith interest and also appropriated the amount deposited by them. It has also imposed penalties on other appellants. The matter went up to the Tribunal. The Tribunal by Final Order No.A/883-885/WZB/AHD/2010, dt.07.07.2010, remanded the matter to the Adjudicating Authority, with certain directions. By impugned order, in de-novo adjudication, the Adjudicating Authority disallowed the CENVAT Credit of ₹ 1,27,73,273.00 alongwith interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Smt. Beena Thomas, Accounts Officer in her statement before the officers admitted that she has taken excess credit as she was not having the knowledge of Central Excise. Hence, the imposition of penalty under Section 11AC of Central Excise Act, 1944 is not warranted. Regarding the imposition of penalties on other Appellants, it is submitted that they are the employees of Company and therefore imposition of penalties on other Appellants are not justified. They had no personal gain. 6. On the other hand, the learned Authorised Representative for the Revenue, submits that the case laws relied upon by the Appellants are in the context whether the Appellant has utilized the credit. In the present case, they have utilized the credit and in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present appeal is only to interest and penalty. Law on the issue of interest stand declared by Tribunal in number of cases as reproduced above. Since the Commissioner has observed that the appellant has utilized the Modvat Crdit whereas it is the appellant's contention that such credit was not utlised by them and at any point of time, the balance in their Modvat account was more than the credit so availed. On this limited issue, we are of the view that the matter needs to be re-examined by the Commissioner inasmuch as the same relates to factual verification. We, accordingly, set aside the impugned order and remand the matter to Commissioner for verification of the appellant's claim on the above issue. 7. As we have already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, we find that the minimum balance in the CENVAT Credit to ₹ 5,09,640.00. It is also noticed the decision relied upon by the learned Advocate is in the context, where the Assesses has not utilized the credit. In the present case, the Appellant utilized the credit as evident from CENVAT accounts and therefore, the decision relied upon by the Appellant would not be applicable in the present case. Hence, the demand of interest is also justified. 10. Regarding the imposition of penalty on the Appellant Company under Section 11AC of the Central Excise Act, 1944, we find that where the CENVAT Credit in respect of input and capital goods or input services has been taken or utilized wrongly by reason of fraud, collusion or any willful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be taken deliberately after going through the statements and records. It is a dear statement that Shri R.K. Shetty had not directed her to avail any excess credit. 11. Keeping into account overall facts and circumstances of the case, we do not find any material that excess availment of credit was made with intention to evade payment of duty. The case law in the case of Pratam Fab Processors pvt. Ltd (supra) as relied upon by the learned Authorised Representative would not be applicable in this case. In that case, two Show Cause Notices were issued to the Appellant for excess availment of credit. It is seen that there was an intention on the part of the Appellant to evade payment of tax. So, in the present case, imposition of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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