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TMI Blog2016 (3) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... Sanjay Hasija, Supdt. (AR) ORDER PER: SS GARG: This appeal is directed against Order-in-Appeal No. YDB/595/M-II/2010 dated 17.09.2010 whereby the Commissioner (Appeals) upheld the Order-in-Original. 2. Briefly the facts of the case are that the appellants are engaged in the manufacture of embroidery fabrics falling under Chapter 5805.19 of Central Excise Tariff Act, 1985. The duty liability on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to issuance of second Notification no. 47/2003-CE (NT). Thereafter the Supdt., Central Excise after scrutiny of the said statement informed the appellant vide letter dated 26.08.2003 that the appellant have not correctly availed the Cenvat Credit. Thereafter the appellant accepted the contention of the department and immediately reversed Cenvat Credit under reference on 30.08.2003 vide RG 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged Cenvat Credit was availed by the appellant notification clarifying the earlier notification was not published and therefore there cannot be any element of fraud/collusion or willful misstatement or suppression of facts or contravention of any of the provisions of the Act or the Rules. He further submitted that erroneously availed Cenvat Credit was never utilized for payment of Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T) was never published before the appellant availed the Cenvat Credit. Moreover, the appellant informed the department by showing the same in the monthly returns and from their returns the Superintendent Central Excise pointed out the mistake and the appellant immediately reversed the Cenvat Credit from his Cenvat Credit account. Since the appellant has already reversed the Cenvat Credit wrongly a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of the Section 11AB of the Central Excise Act, 1944. Therefore, I partly allow the appeal by setting aside the penalty imposed on the appellant and I hold that the appellant is liable to pay interest from the date he availed the Cenvat Credit till he reversed the same as per the provisions of Section 11AB of the Central Excise Act. 8. The appeal is partly allowed. (Pronounced in Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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