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2016 (2) TMI 68 - CESTAT MUMBAI

2016 (2) TMI 68 - CESTAT MUMBAI - TMI - Equal penalty imposed under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 - Held that:- There is no allegation regarding fraud, wilful misstatement, suppression of fact which are required as per Rule 15(2) read with Section 11AC of the Central Excise Act to impose equal amount of penalty. Moreover, once the learned Commissioner (Appeals) has dropped the interest on the ground that the cenvat credit was a .....

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aside impugned order and allow the appeal. - Decided in favour of assessee - APPEAL No. E/633/11-Mum - A/85315/16/SMB - Dated:- 12-1-2016 - MR. S.S. GARG, MEMBER (JUDICIAL) For the Petitioner : Ms. Anjali Hirawat, Advocate For the Respondent : Shri S.V. Nair, Assistant Commissioner (AR) ORDER This appeal is directed against order-in-appeal No. YDB/45/RGD/2011 dated 21.1.2011 passed by Commissioner of Central Excise (Appeals), Mumbai-II, upholding order-in-original dated 29.3.2010. 2. Briefly th .....

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tomers as per the terms and conditions of the agreement entered into between them. As per the terms and conditions, the cost of transportation is borne by the appellant and thereafter they take the cenvat credit on reverse charge basis. The appellant has paid service tax to the department in terms of Section 66A of the Finance Act, 1994 read with Rule 2(1)(d)(iv) of the Cenvat Credit Rules, 2004 and availed the credit of the service tax in terms of the provisions of Rule 3 of the Cenvat Credit R .....

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interest and penalty. Thereafter the appellant has filed appeal before the Commissioner (Appeals) who set aside the interest and confirmed equal penalty on the appellant. Hence this appeal by the appellant against the confirmation of the penalty imposed by the order-in-appeal. 3. The learned counsel for the appellant submitted that in the grounds of appeal, he has contested the entire demand on merit, but since the appellant has already reversed the cenvat credit, therefore, confining her argume .....

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n the order-in-original and order-in-appeal where the ingredients of Section 11AC are mentioned. She further submitted that once the Commissioner (Appeals) has given the relief with regard to interest on the ground that though the credit was availed by the appellant but not utilized, by relying upon the judgment of the Hon ble Punjab & Haryana High Court in the case of Ind-Swift Laboratories Ltd. vs. UOI reported in 2009 (240) ELT 328 (P&H). In order to appreciate the whole controversy, .....

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de payment of duty, then, the manufacturer shall also be liable to pay penalty in terms of the provisions of section 11AC of the Excise Act. SECTION 11AC. Penalty for short-levy or non-levy of duty in certain cases. Where any duty of excise has not been levied or paid 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 there under with .....

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not an put service and the appellant has wrongly taken the credit which the appellant has reversed later on. She further submitted that in the impugned order there is no discussion at all with regard to suppression of material fact with intent to evade payment of duty. In order to support her submissions, she cited the decision of the Hon ble Bombay High Court in the case of CCE, Thane-II vs. Bright Brothers Ltd. reported in 2015 (322) ELT 110 (Bom.), wherein the Hon ble High Court in para 11 ha .....

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