TMI Blog2015 (10) TMI 1835X X X X Extracts X X X X X X X X Extracts X X X X ..... provides that in case of fraud, collusion, or wilful mis-statement, or suppression of facts with intent to evade payment of duty, the said provision can be invoked and not otherwise. The record reveals that suppression, misstatement etc., cannot be alleged against the appellant, since a genuine belief regarding non-maintenance of separate accounts was entertained by it. Admittedly, non-reversal of cenvat credit in the present case is not attributable to any fraud, collusion, mis-statement etc., and accordingly, provisions of Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 cannot be invoked for imposition of penalty on the appellant. - there was no justification for invoking the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave not been maintained by the appellant, the Department initiated show cause proceedings for recovery of the cenvat credit in terms of Rule 6(3)(A) of the Cenvat Credit Rules, 2004. The cenvat credit attributable to the common input and input services was to the tune of ₹ 7,74,338/-, part of which was reversed by the appellant on 31.01.2011 and 12.02.2013 and the balance credit was reversed along with interest within 15 days from the date of adjudication of the matter. The SCN issued by the Department culminated in the Adjudication Order wherein, penalty of ₹ 7,74,338/- was imposed under Rule 15(2) of the Cenvat Credit Rules, 2004. Hence, this present appeal before this Tribunal. 2. The Ld. Advocate appearing for the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra, the Ld. DR appearing for the Revenue, submits that electricity is an excisable product since finds a place in the Central Excise Tariff. According to the ld. D.R., though there is no mention of any rate of duty for electrical energy, but as per the additional notes appended to the Tariff Act, the said item is to be considered as an excisable product. The Ld. D.R. further submits that electrical energy (electricity) being an excisable product and no duty rate has been prescribed for same in the .Tariff Act, the said item will be construed as exempted goods, for which, the embargo created in the Rule 6 of the Cenvat Credit Rules will have the application and the assessee is under the statutory obligation to observe the procedures laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f that it was outside the purview of Rule 6 and there was no requirement for reversal the cenvat credit. However, once the cenvat credit has been reversed along with interest, there was no requirement for the Central Excise department to proceed further for imposition of penalty, especially by invoking the provisions of Rule 15(2) of the Rules, which, in clear and unambiguous terms provides that in case of fraud, collusion, or wilful mis-statement, or suppression of facts with intent to evade payment of duty, the said provision can be invoked and not otherwise. The record reveals that suppression, misstatement etc., cannot be alleged against the appellant, since a genuine belief regarding non-maintenance of separate accounts was entertained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to prove suppression of fact. An incorrect statement cannot be equated with a willful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not correct. 12. As far as fraud and collusion are concerned, it is evident that the intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualified by the word 'wilful', preceding the words mis-statement or suppression of facts which means with intent to evade duty. The next set of words 'contravention of any of the provisions of this Act or Rules' are again qualified by the immediately following words 'with intent to evade payment of duty. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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