TMI Blog2015 (9) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... ylinders. Hence, the present facts fall under the category of sub-rule (1) of rule 13 of CENVAT Credit Rules, 2002. Consequently, the appellant is liable to pay penalty under the said rules and the maximum penalty imposable is ₹ 10,000/-. Consequently, the impugned order is set aside - Decided in favour of assessee. - Excise Appeal No. E/589/2011 - ORDER No. FO/A/75431/2015 - Dated:- 7-8-2015 - Dr. D. M. Misra, Hon ble Judicial Member,J. For the Petitioner : Sri B.N. Chattopadhyay, Consultant For the Respondent : Sri A.K. Biswas, Supdt. (A.R.) ORDER Per Dr. D. M. Misra This is an appeal filed against order-in-appeal No. 56-57/Kol-III/2011 dated-01/03/2011 passed by the Commissioner of Central Excise (Appeals). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed both the appeals .Hence, the present appeal is filed by the assesse/appellant. 6. At the outset, the Ld. Consultant Shri B.N. Chattopadhyay submitted that the Appellant in the present Appeal are not disputing the recovery of CENVAT Credit of ₹ 1,24,340/- and the interest liability; their challenge to the Order is limited to the imposition of penalty of ₹ 1,24,340/- under Section 11AC of CEA, 1944 read with Rule 13 of CENVAT Credit Rules, 2002. Ld. Consultant submits that under a bonafide belief, they have availed CENVAT Credit on cylinders used in transferring/transporting of gases from the factory to the customer s premises as capital goods. All these facts were informed and within the knowledge of the department. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing it as capital goods. But later when the case was remanded by this Tribunal they have accepted that cylinders are used are inputs and not capital goods. Consequently, they have placed necessary evidences and established before the adjudicating authority that the entire CENVAT Credit was not in relation to transfer of exempted gases only but both dutiable as well as exempted gases. Analyzing the evidences, the Ld. Asst. Commissioner has dropped a major portion of the demand and wherever they could not place evidences that cylinders were used in transporting dutiable gases , he has confirmed recovery of the CENVAT Credit, which was to the extent of ₹ 1,24,687/-. The dispute in the present appeal is in relation to the imposition of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT Credit on these cylinders as capital goods, disclosed all the facts to the Department. Hence, imposition of penalty under sub-rule (2) of Rule 13 of CENVAT Credit, in my opinion is unwarranted. However, it cannot be denied that they have contravened the provisions of CENVAT Credit Rules in availing the CENVAT credit on cylinders. Hence, the present facts fall under the category of sub-rule (1) of rule 13 of CENVAT Credit Rules, 2002. Consequently, the appellant is liable to pay penalty under the said rules and the maximum penalty imposable is ₹ 10,000/-. Consequently, the impugned order is set aside to the extent of imposition of equivalent penalty, however, ₹ 10,000/- is imposed as penalty under Rule 13(1) of Cenvat Credit R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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