TMI Blog2017 (6) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... l penalty under Rule 15(2) of the CENVAT Credit rules is not sustainable in law - appeal allowed - decided in favor of appellant. - E/28004/2013-SM - Final Order No. 20427 / 2017 - Dated:- 28-3-2017 - Shri S. S. Garg, Judicial Member Mr. M. S. Nagaraja, Adv For the Appellant Ms. Ezhil Mathi, A.R. For the Respondent ORDER Per S. S. Garg The present appeal is directed against the impugned order dated 12.09.2013 passed by the Commissioner (Appeals). 2. Briefly the facts of the case are that the appellants are engaged in the manufacture of excisable goods i.e. cable assembly falling under Chapter 85 of the CETA 1985. During the scrutiny of their records by the A.G. Audit for the period from April 2008 to March 2010, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s audit party visited the factory from 23.08.2010 to 27.08.2010 for audit of the books of accounts for the period from April 2008 to March 2010. During the audit, the balance-sheet for the year 2009-10 was under finalization. The audit party observed that the appellants were in the process of finalization of accounts and was making provision in respect of non-moving inputs valued at ₹ 77,95,038/- for the year 2009-10 and had not reversed proportionate CENVAT credit on inputs. The appellants finalised the balance-sheet for the year 2009-10 by making provision for non-moving inputs valued at ₹ 77,95,038/- in order to reduce the inventory cost, debited the proportionate CENVAT of ₹ 12,72,150/- vide Sl No. 308, Folio No. 19 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion shall not serve any notice under sub-section (1) in respect of the duty so paid: Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of one year referred to in sub-section (1) shall be counted from the date of receipt of such information of payment Learned counsel further submitted that the balance-sheet for the year 2009-10 was required to be finalized/adopted and submitted to the Registrar of Companies by 30.09.2010 only after the provision made in respect of inputs in the balance sheet has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith malafide intention to evade payment of duty. Further, I also find that in the case of CC Bangalore Vs Powerica Ltd [2012(276)ELT 302(Kar)], it has been held by the Karnataka High Court that if the duty and interest is paid before the issue of show-cause notice and the department is informed about it then in such a situation, initiation of proceedings for imposition of penalty are not maintainable under Section 28(2B) of the Customs Act and also in terms of Sub-section 2B of Section 11A. Though the learned counsel for the appellant argued that even the reversal of the CENVAT credit and the payment of interest are not required to be done because there was no machinery for recovery of irregular availment of CENVAT credit as provided in Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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