TMI Blog2016 (11) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... d the imposition of penalty, find that not only in the show cause notice but in the Adjudication order also demand confirmed under Section 11A for an amount of ₹ 7,091/- whereas penalty under Section 11AC was imposed for an amount of ₹ 4,49,357/-. Penalty under Section 11AC can only be imposed when the duty demand is determined under Section 11A(1). In the present case the duty determined under Section 11A(1) is limited to ₹ 7,091/- therefore penalty over and above this amount is not sustainable as the same is not corresponding to any amount of duty determined under Section 11A(1). However issue of admissibility of Cenvat credit is yet to be decided by the Adjudicating authority. In view of my above observations penalty if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand of recovery of interest on Cenvat credit wrongly availed on Capital goods, amounting to ₹ 54206/-(Rupees Fifty Four thousand two hundred six only) under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944. 4) I impose penalty of ₹ 459357/- (Rupees four lakhs fifty nine thousand three hundred fifty seven only) on M/s. Vishesh Enterprises under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944. Being aggrieved by the Order-in-Original, appellant filed appeal before the Commissioner(Appeals) who upheld the Order in Original and rejected the appeal therefore appellant is before me. 3. None appeared on behalf of the appellant, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depreciation has not been claimed in the balance sheet even though initially it was claimed, Cenvat Credit cannot be denied. However it appears from the order that this aspect has not been examined by the Adjudicating Authority. As regard the imposition of penalty, I find that not only in the show cause notice but in the Adjudication order also demand confirmed under Section 11A for an amount of ₹ 7,091/- whereas penalty under Section 11AC was imposed for an amount of ₹ 4,49,357/-. Penalty under Section 11AC can only be imposed when the duty demand is determined under Section 11A(1). In the present case the duty determined under Section 11A(1) is limited to ₹ 7,091/- therefore penalty over and above this amount is not sust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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