TMI Blog2016 (4) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11AB and 11AC respectively. In absence of observance of Section 11A (1) and (2) the interest and penalty cannot be imposed. Therefore, interest and penalty are unsustainable. - Decided in favour of appellant - Appeal No. E/1379 & 1380/10 - Order No. A/86556-86557/16/SMB - Dated:- 17-3-2016 - Ramesh Nair, Member (J) For the Appellant : Shri Vinod Awtani, CA For the Respondent : Shri H M Dixit, Asstt Commissioner (AR) ORDER Per Ramesh Nair These appeals are directed against Order-in-Appeal No. VSK/74 TO 75/Th-I/2010 dated 26/3/2010 passed by the Commissioner (Appeals) Central Excise, Mumbai Zone-I, wherein Ld Commissioner (Appeals) upholding the demand of interest and penalty, rejected the appeal of the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Delhi [2000 (120) ELT 81 (Tri.)] (f) Commr. of C. Ex. Bangalore-III Vs. Bharat Heavy Electricals Ltd [2010 (257) ELT 369 (Kar.)] 4. On the other hand, Shri. H.M. Dixit, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 5. I have carefully considered the submissions made by both sides and perused the record. 6. I find that the Show cause notice was issued only for demand of interest under Section 11AB and imposition penalty under Section 11AC for the reason that the appellant had availed 100% Cenvat credit on receipt of the Capital goods instead of 50% as provided under Rule 4(2)(a) and (b). I find that statutory provision for interest and penalty are provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under sub-section (10) of section 11A shall also be liable to pay a penalty equal to the duty so determined; Section 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, for any reason, other than the reason of fraud or collusion or any willful 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,- (a) the Central Excise Officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been so levied or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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