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2016 (11) TMI 1105 - CESTAT NEW DELHI

2016 (11) TMI 1105 - CESTAT NEW DELHI - TMI - CENVAT credit - forged documents - imposition of penalty - Held that: - I find that the credit wrongly availed by the assessee on the basis of the invoice, in the name of their Kalamb unit was otherwise available to their Kalamb unit. To err is human and in as much as the error is on the part of the employee responsible for making entries in RG-23 (a) part II, who had recently joined, I conclude that there was no malafide intention on the part of the .....

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nvoke 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 Respondent ORDER Per Archana Wadhwa As per facts on record the appellant is engaged in .....

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ir other unit situated in Kalamb in Himachal Pradesh. Further, in respect of one invoice the credit was taken twice and in respect of one Bill of Entry, the credit was availed before the receipt of the goods in as much as they were still lying in warehouse pending ex-bond clearance. 3. The appellants authorized representative Shri Jindal in his statement recorded on the subject accepted the above excess availment of credit on the basis of the documents related to their Himachal Pradesh unit, whi .....

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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 impose .....

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availed by mistake in as much as their Head Office sent the said invoice to their unit located at Bhiwadi and the person responsible for maintain the records took the Cenvat Credit without noticing that the invoice were not in their units name. He submits that in any case the credit was available to their Kalamb unit. Similarly the fact of availment of credit two times in respect of the same invoice was a clerical mistake. Further, the availment of credit in respect of Bill of entry, prior to re .....

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rsal of credit without utilization and any protest by the appellant should have been taken into consideration, resulting in conclusion of the proceedings, 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 submi .....

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