TMI Blog2016 (4) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... e malafide which is an essential requisite for the imposition of penalty under Rule 15(2) of the CENVAT Credit Rules read with Section 11AC of the Central Excise Act. Therefore, the penalty imposed is set aside. - Appeal allowed by way of remand - E/41013/2014 - Final Order No. 40587 / 2016 - Dated:- 7-4-2016 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER For the Petitioner : Shri M. Kannan, Adv. For the Respondent : Shri R. Subramanian, AC (AR) ORDER The adjudicating authority has confirmed the demand of ₹ 3,10,792/- alongwith interest and penalty and appropriated the amount already paid towards demand of duty;. The appellant company has availed ineligible cenvat credit on capital goods and service tax credit. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of his contentions:- 1. CCE, Madurai Vs. Strategic Engg. (P) Ltd.,-2014 (310) ELT 509 (Mad.) 2. CCE, Mumbai -I Vs. Bombay Dyeing Mfg. Co. Ltd.-2007 (215) ELT 3 (S.C.) 3. CCE, Meerut-II Vs. Rana Sugar Ltd.-2010 (253) ELT 366 (All.) 3. The Ld. AR, Shri R. Subramanian, AC, submits that M/s. Hinduja Foundries Ltd. had wrongly availed the cenvat credit of ₹ 2,98,747/- as input credit for the capital goods by contravening the provisions of Rule 4 (2) (a) of CCR, 2004. Even though they wrongly availed the credit they reversed it but they did not pay any interest, which worked out to ₹ 40,646/-. He also mentions that as pre Rule 14 of the CCR, 2004, interest is recoverable when cenvat credit is taken or utilized wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant/Department is erroneous, whereas the argument advanced on the side of the respondent is really having merit and the substantial questions of law settled in the present Civil Miscellaneous Appeal are not having substance and altogether the present Civil Miscellaneous Appeal deserves to be dismissed. 6. However, in the absence of documentary proof, the matter needs to be remitted back to the Adjudicating Authority before whom the appellant must prove that there has only been availment and no utilization. The adjudicating authority shall re-decide the issue based on the judgment of the High Court, supra. Needless to mention that the authority shall also follow the principles of natural justice. If on perusal of the documents it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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