TMI Blog2016 (11) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... uch it is only a question of time of availament of credit and such pre mature availment has not benefitted the assessee in as much as the credit availed was not put to use on account of already overflowing credit available with the assessee. This act of the appellant cannot be held to be a malafide intention so as to invoke the penal provisions against them. I find no justifiable reasons to impose penalty on the appellant. Accordingly, the same is set aside - appeal allowed - decided in favor of appellant. - Appeal No. E/1306/2010-EX(SM) - Final Order No. 55148/2016-EX(SM) - Dated:- 21-11-2016 - Hon'ble Ms. Archana Wadhwa, Member (Judicial) Ms. Sukriti Das, Advocate for the Applicants Shri Dharam Singh, DR for the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s due to oversight. The total Cenvat Credit of ₹ 21,75,684/- was debited by the appellant on 20.09.2006 itself. 4. Based upon the above, proceedings were initiated against the appellant by way of issuance of the show cause notice dated 30.01.2008 proposing to confirm the debit entry made by the appellant in their RG-23 Part II along with confirmation of interest and imposition of penalty under Rule 15(1) of the Cenvat Credit Rules read with section 11AC of the Central Excise Act. 5. On adjudication the Original Adjudicating Authority confirmed the denial of the Cenvat Credit and imposed penalty of identical amount under Rule 15 (2) of Cenvat Credit Rules read with Section 11AC. The said order of the original adjudicating authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings, thus requiring no issuance of the show cause notice in terms of section 73 (3) of the Finance Act. In such a scenario the imposition of penalty upon the appellant is neither warranted nor justified. Accordingly he prays for setting aside the same. 7. After hearing the Ld. DR and after going through the impugned order and appreciating the submissions made by the Ld. Advocate, I find that the only contest in the present appeal is to imposition of penalty. Admittedly, the entire credit irregularly availed by the appellant was reversed by them prior to the issuance of the show cause notice. As such I agree with the Ld. Advocate that the same should have been considered as finality of the proceedings and no show cause notice was r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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