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2016 (4) TMI 976 - CESTAT MUMBAI

2016 (4) TMI 976 - CESTAT MUMBAI - TMI - Demand of interest and imposition of penalty u/s Section 11AB and 11AC respectively - Cenvat credit availed to the extent of 100% in respect of Capital goods instead of 50% - Held that:- subsection (1) of Section 11A provides for issuance of show cause notice and subsection (2) provides for determination of duty. In the present case neither any show cause notice was issued for proposing any demand of duty/Cenvat nor any determination of duty / Cenvat was .....

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hri 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. 2. The issue involved in the present case is that the show cause notice was issued only for the demand of interest a .....

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Therefore there is neither the show cause notice under Section 11A(1) and nor any Adjudication Order under Section 11A(2) was issued and consequently there is no determination of duty under Section 11A(2). He submits that under provisions of Section 11AB and Section 11AC the penalty and interest can be demanded only if the duty was determined under Section 11A(2). He placed reliance on following judgments: (a) Commissioner of C.Ex. Chandigarh Vs. Groz Beckert Asia Pvt Ltd [2009 (240) ELT 222 (T .....

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, 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)( .....

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t such rate not below [ten per cent.] and not exceeding thirty six per cent per annum as is for the time being fixed by the Central Government, by notification in the Official Gazette, from the first date of the month succeeding the month in which the duty ought to have been paid under this Act, or from the date of such erroneous refund, as the case may be, but for the provisions contained in sub-section (2), or sub-section (2B), of section 11A till the date of payment of such duty: Section 11AC .....

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e payment of duty, the person who is liable to pay duty as determined 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 .....

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