TMI Blog2016 (9) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no determination of duty in the order passed by the adjudicating authority. This is because, though the appellants had wrongly availed 100% credit on capital goods in the same financial year, which is contrary to the provision of Cenvat Credit Rule, 2004, they would have been eligible for credit in the subsequent year. Thus, the demand raised in show cause notice is only for interest which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No. E/2158/2012 - Final Order No. A/30154/2016 - Dated:- 22-1-2016 - Ms. Sulekha Beevi, C.S. Member(Judicial). Ms. A.S.K. Swetha, Advocate for the Appellant. Shri H.S. Naskar, AR for the Respondent. ORDER [Per: Sulekha Beevi, C.S.] 1. The appellants are manufacturers of Bright Bars and Bolts and are registered with the department. On scrutiny of records it was found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order impugned herein upheld the same. Hence this appeal. 2. At the time of hearing, the learned counsel appearing for the appellant Ms. A.S.K. Swetha submitted that the appellant is confining the challenge against the penalty only. She strongly contended that as there is no demand of duty in the show cause notice, the imposition of penalty is unsustainable. That no penalty can be imposed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een eligible for credit in the subsequent year. Thus, the demand raised in show cause notice is only for interest. It is submitted by the learned counsel that the interest is already paid by the appellant. When the show cause notice itself is for demand of interest only and no determination of duty, the adjudicating authority has confirmed the proposed penalty of equal amount. The penalty is seen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or willful misstatement of facts. That, in the absence of determination of duty, the question of penalty under section 11AC does not arise at all. In view thereof, I find that the penalty imposed is not sustainable. The demand of interest is sustained. 4. In the result, the impugned order is modified to the extent of setting aside the penalty imposed. The appeal is partly allowed with consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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