TMI Blog2011 (10) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... may be considered on merits and decided. 2. In their letter received on 21-10-2011, the assessee has requested to consider the request and submissions enumerated in para 5(A) and 5(B) of the ROM application on merits and modify the order granting consequential relief. Para 5(A) and 5(B) of the ROM application are reproduced for ready reference. A. The Applicant refer to Paras 15 16 of their Written Submission wherein it is clarified that the show cause notice was served on 29-2-2008 denying the Cenvat credit availed in April, 2006 and there is no dispute that the monthly return were filed and reference of said EDI Bill of Entry was given in the return as well as in Cenvat records and there is neither suppression nor any mis-statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and deserves to be confirmed under Rule 14 read with Section 11A by invoking larger period and penalty equal to duty is imposable under Section 11AC, then the applicants should be granted with an option to pay the duty, interest and penalty equal to 25% of the duty as per the proviso to Section 11AC of Central Excise Act, 1944. It is a matter of record that the Adjudicating Authority has not granted the said benefit/option as per the proviso of Section 11AC in his Impugned Order and as per the Gujarat High Court and Delhi High Court the option should be given to the assessee/applicant. In support of the said claim the applicants wish to refer and rely on the following decisions. C.C.E. Cus., Surat-II v. Gopal Fibres Pvt. Ltd. - 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d so, the aspect of limitation has been covered in the following observations of the Tribunal. In this case the bill of entry was dated 10-2-2005 whereas the credit was taken on 14-4-2006. According to the respondents, the copy of the original bill of entry was available with them at the time when credit was taken and subsequently it was misplaced. This is a very strange logic. Goods were received in factory in 2005 and the original bill of entry admittedly was available till 14-4-2006 and thereafter only it got misplaced according to the respondents. The bill of entry was available till the credit was taken i.e. for more than a year. How it disappear thereafter is something for which no explanation whatsoever has been putforth by the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of hearing of the appeal of the department. Nevertheless, when he was asked whether he has no objection if the benefit of reduction of penalty can be extended in the interest of justice and fairness, he fairly agrees and says he has no objection. 5. In view of the above, if the Cenvat credit amount demanded, interest thereon is paid with 25% of Cenvat credit demanded towards penalty within thirty days of the receipt of this order, the assessee shall not be required to pay the balance 75% of the penalty. It is made clear that if duty and interest and penalty to the extent of 25% of duty is not paid within thirty days of the receipt of this order, the assessee shall be required to pay the Cenvat credit amount demanded, interest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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