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2015 (10) TMI 789 - CESTAT MUMBAI

2015 (10) TMI 789 - CESTAT MUMBAI - 2015 (329) E.L.T. 543 (Tri. - Mumbai) - Levy of penalty u/s 11AC read with Rule 15 - Availment of inadmissible CENVAT Credit was reversed on pointing out by the department - Held that:- Where the duty is determined under Section 11A(2), the penalty under Section 11AC can be imposed. In the present case there was neither any show cause notice nor any adjudication order in respect of payment of cenvat amount of ₹ 4,38,508/- by the appellant. Therefore, thi .....

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authority and upheld by the Commissioner (Appeals) is maintained. - Decided in favour of assessee. - Appeal Nos. E/361, 362/10-Mum - Final Order Nos. A/1278-1279/2015-WZB/SMB - Dated:- 7-5-2015 - Ramesh Nair, Member (J),J. For the Appellant : Shri S.S. Hawaldar, Adv. For the Respondent Rep by: Shri V.K. Shastri, AR ORDER These two appeals are directed against orders-in-appeal No. P-I/VSK/262 & 263/2009 dated 10.12.2009 passed by Commissioner of Central Excise (Appeals), Pune-I, wherein the l .....

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under Section 11AC read with Rule 15 of the Cenvat Credit Rules, 2004 and recovery of interest under Section 11AB. In the adjudication, demands of penalties and interest were confirmed. Aggrieved by the adjudication orders, the appellant preferred appeal before the Commissioner (Appeals) who also upheld the penalties and interest. Aggrieved by the impugned orders, the appellant is before me. 3. Shri H.S. Hawaldar, learned counsel for the appellant, submits that they have availed the credit inadv .....

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E, Meerut-I reported in 2008 (230) ELT 532 (Tri.-Del.); ii) CCE, Ghaziabad vs. Ashoka Metal Décor(P) Ltd. reported in 2011 (21) STR 469 (All.); iii) CCE, Meerut-II vs. Rana Sugar Ltd. reported in 2010 (253) ELT 366 (All.), and iv) CCE&ST, LTU, Bangalore vs. Bill Forge Pvt. Ltd. reported in 2012 (279) ELT 209 (Kar.). 4. On the other hand, Shri V.K. Shastri, learned Assistant Commissioner (AR), appearing on behalf o the Revenue reiterates the findings of the impugned order. He submits t .....

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the period of interest should be reckoned right from the date of availment of credit and not from the utilization of the credit. This has been held by the Hon'ble Supreme Court in the case of UOI vs. Ind-Swift Laboratories Ltd. reported in 2012 (25) STR 184 (SC). 5. I have carefully considered the submissions made by both the sides. As regards appeal No. E/361/10, it is observed that the show cause notice was issued only for demand of interest and penalty as the cenvat credit was suo motu pa .....

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or short-levied or short-paid or erroneously refunded, by reason of fraud or collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (10) of section 11A shall also be liable to pay a penalty equal to the duty so determined; (b) where details of any transaction available in the specified records reve .....

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in clause (b) is paid within thirty days of the date of communication of order of the Central Excise Officer who has determined such duty, the amount of penalty liable to be paid by such person shall be twenty-five per cent, of the duty so determined; (d) where the appellate authority modifies the amount of duty of excise determined by the Central Excise Officer under sub-section (10) of section 11 A, then, the amount of penalties and interest payable shall stand modified accordingly and after .....

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notice was issued have been recorded in specified records and the case falls under sub-section (5), penalty equal to fifty per cent, of the duty shall be leviable, (2) Where the amount as modified by the appellate authority is more than the amount determined under sub-section (10) of section 11A by the Central Excise Officer, the time within which the interest or penalty is payable under this Act shall be counted from the date of the order of the appellate authority in respect of such increased .....

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