TMI Blog2017 (2) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... , where it was held that the onus of taking credit correctly has been put on the appellant and this self assessment memorandum requires them to take the credit correctly and as per law. The above decision is squarely applicable in the instant case as elements for invoking extended period and penalty under Sec. 11AC are identical. Hence, the plea of the appellant that they had no intention to suppress is not tenable. Appeal dismissed - decided against appellant. - E/1778/11-MUM - A/85127/17/SMB - Dated:- 30-12-2016 - Mr. Devender Singh, Member (Technical) Ms. Padmavati Patil, Advocate for the Appellants Sh. N.N. Prabhu Desai, Supdt. (AR), for the Respondent Per: Devender Singh Appellants are in appeal against Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dt. 04.05.2010 was therefore issued to the appellants. The adjudicating authority disallowed and confirmed the demand of excess Cenvat credit of ₹ 5,72,194/-, ordered appropriation of the amount already paid by the appellants against the said demand. He has also confirmed recovery of interest of ₹ 70,106/- and ordered appropriation of the amount already paid. He further imposed a penalty of ₹ 5,72,194/-, on the appellants under the provisions of Rule 15(2) of Cenvat Credit rules, 2004 read with Section 11AC ibid. 5. Being aggrieved by the impugned Order-in-Original in so far as it related to interest and penalty, appellants went in appeal. The Ld. Commissioner (Appeals) upheld the Order-in-Original and rejected their ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was taken correctly and argued that this was contrary to plea before the ld. Commissioner (Appeals) Tribunal that they were not contesting the demand. He contended that their pleas could not be mutually destructive. He relied upon the following case laws:- 1. Union of India Vs. Ind-Swift laboratories Ltd. - 2011 (265) E.L.T. 3 (S.C.). 2. Dr. Reddy s Laboratories Ltd. Vs. CCE ST, Hyderabad- 2013 (293) ELT 81 (Tri.- Bang.) 3. CCE, Chennai-IV Vs. Sundaram Fasteners Ltd.-2014 (304) ELT 7 (Mad.) 4. CCE, Surat-I Vs. Neminath Fabrics Pvt. Ltd. - 2010 (256) E.L.T. 369(Guj.) 5. CCE, Jalandhar Vs. Vardhman India Products 2009 (236) ELT 637 (P H) 6. Commr. of Cus. C. Ex., Ghaziabad Vs. Rathi Steel Power Ltd.- 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CCR, 2004. Clearly, the assessee did not discharge that burden and availed and utilized credit on same documents again. It is evident that had there been no audit, undue benefit would have been taken by the appellants at the cost of Revenue. As rightly pointed out by the Ld. AR., the appellants still have not realized their misconduct as is apparent from their plea in para 10.2 of the grounds of appeal. The fact that the Cenvat Credit has been taken over a period of 6 months shows that they continued filing wrong declarations suppressing the facts and misdeclared the fact of wrongly availing the Cenvat Credit in their ER-I declarations. In the case of M/s Mahindra Sona ltd. Vs. CCE, Nashik (supra), the Tribunal has held as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances. The above decision is squarely applicable in the instant case as elements for invoking extended period and penalty under Sec. 11AC are identical. Hence, the plea of the appellant that they had no intention to suppress is not tenable. It is also pertinent that the appellant paid the duty and interest only after it was pointed out by the Audit and not on voluntary basis. It has been held in the following case laws relied upon by Revenue that since duty was not paid voluntarily, the penalty was imposable. 1. CCE, Delhi Vs. Toshi Auto Industries Pvt. Ltd.-2005(183) E.L.T. 48(Tri. -Del.) 2. Siva Hygenic Products Pvt. Ltd. Vs. CCE, Madurai - 2005 (186) E.L.T. 48 (Tri. -Del.) 11. The case laws cited by the Appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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