TMI Blog2016 (12) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial Member Shri Anirudha Nayak, Advocate For the Appellant Mr. Mohammed Yousuf, AR For the Respondent ORDER Per S. S. Garg The present appeal is directed against the impugned order dated 28.12.2011 passed by the Commissioner (A) whereby the Commissioner (A) has set aside the impugned order to the extent of confirming reversal of CENVAT credit of ₹ 15,140/- towards air travel services and ₹ 14,004/- towards courier services and upheld the order to the extent of confirming the balance amount of ₹ 2,15,105/- which has been reversed by the appellant and appropriated by the original authority. Penalty and interest has also been upheld. 2. Briefly the facts of the case is that the appellant is enga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit of ₹ 2,15,105/- availed as CENVAT credit on rental bill of Bandapur plant. He also submitted that as per the provisions of law, the Department should not have issued show-cause notice because the appellant has not utilized the said credit and it was lying in his books. He further submitted that the CENVAT credit of service tax paid on the rent of Bandapur plant and credit availed on bills addressed to Bandapur plant, these credits were availed by oversight due to ignorance of accounting staff. The bills of Bandapur plant was furnished to the accounts department of Chandapur Plant instead of Bandapur plant. As the staff of the accounts department were not aware of the CENVAT credit Rules the credit was accounted in Chandapur pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorities of CCE, Bangalore vs. Bill Forge Pvt. Ltd.: 2012 (279) E.L.T. 209 (Kar.) and also J. K. Tyre Industries Ltd. vs. CCE, Mysore: 2016 (340) ELT 193 (Tri.-LB). He further submitted that the penalty cannot be imposed as there was no mens rea on the part of the appellant to evade payment of duty. It was only bona fide mistake which was rectified immediately on being pointed out. In support of this submission, he relied upon the following authorities: i. Flex Industries Limited vs. CCE: 2003 (151) ELT 198 ii. Aurobindo Pharma Ltd. vs. CCE: 2002 (52) RLT 943 iii. G.S. Enterprises vs. CCE: 2002 (50) RLT 012 iv. CCE vs. S. B. Packing Ltd.: 2002 (50) RLT 292 v. Nagpur Alloys Castings Ltd. vs. CCE: 2002 (50) RLT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty. The availment of Cenvat credit on inputs which was received short seems to be a genuine mistake and the findings of the Commissioner (Appeals) to this effect are not challenged. The findings of the Commissioner (Appeals) are as under: 5. As regards the imposition of penalty ofRs.4,03,183/- I find that just because appellants are registered since long and are one of the highest revenue payers, does not prove the intent to evade duty. On the contrary being one of the highest revenue payers and taking into consideration the fact that on being pointed out the appellants having immediately paid duty along with interest shows that they had no intention of evading duty. The Department has also not alleged any suppression. 6.1 Sim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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