TMI Blog2017 (6) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... h Kumar, JJ. For Appellant : Ms.Cyndiya Crishnan for M/s.Md Shaffiq For Respondent : Mr.A.P.Srinivas ORDER (Judgment of the Court was delivered by RAJIV SHAKDHER,J.) 1.This is a statutory appeal preferred by the Assessee against the order dated 07.10.2011 passed by the Customs, Excise and Service Tax Appellate Tribunal (in short, the Tribunal). 2.The appeal was admitted by this Court on 04.06.2012, when the following question of law was framed for consideration by this Court: Whether the order of the learned Tribunal holding penalty imposable on placing reliance on the decision of the Apex Court in the case of M/s.Ind-Swift Laboratories P. Ltd. reported in 2011 (265) E.L.T.3 (S.C.) is sustainable when the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit amount as confirmed under sl.no.(i) above. iv. I appropriate and adjust the interest amount of ₹ 61,220/- (Rupees Sixty one thousand two hundred and twenty only) towards the demand at (iii) above. v. I impose a penalty of ₹ 8,01,826/- (Rupees Eight lakhs one thousand eight hundred twenty six only) under Section 11AC of the Central Excise Act, 1944. 4. The Assessee, being aggrieved by the aforementioned order, preferred an appeal with the Commissioner of Customs and Central Excise (Appeals) [in short, Commissioner (Appeals)]. The appeal preferred by the Assessee was dismissed and the order passed by the Adjudicating Authority was confirmed. 5. This led to the Assessee preferring a second appeal, this time, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as indicated to us, that in so far as the appropriation of excess cenvat credit and imposition of interest is concerned, the Assessee is not aggrieved. 7.1. The learned counsel says that the appeal in the instant case is limited to the imposition of penalty. 7.2. Learned counsel further submits that the Tribunal has not gone into the aspect, as to whether or not, penalty ought to have been imposed on the Assessee, given the facts and circumstances, which have arisen in the present case. 7.3. It is the learned counsel's submission that the Tribunal had to examine in the facts and circumstances of the case, as to whether the excess cenvat credit was taken by the Assessee, on account of mistake or as alleged was an act of delibera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... else, we may, note that we have grave doubts, as to whether, the Tribunal could have reversed its view, based on an application for rectification, moved by the Revenue, under Section 35 C (2) of the CE Act. 10.1.The Supreme Court, in the case of: Commissioner of Central Excise, Belapur, Mumbai Vs. RDC Concrete (India) P. Ltd., 2011 (270) E.L.T. 625 (S.C.), has laid down the following yardstick, for entertaining an application under Section 35 C (2) of the CE Act. For the sake of convenience, the observations made in that behalf, as set out in paragraph 21, are set out hereafter: 21.This Court has decided in several cases that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices as set out in the paper book. 12.1.It does appear that in case of the first four invoices, the Assessee appears to have taken 50% credit of the eligible cenvat credit, available to the dealer, from whom, the Assessee had bought the goods. This position obtains, vis-a-vis invoice nos.311, 003, 825/26920, 826/26930 dated 23.01.2007, 05.04.2007, 06.06.2007, 06.06.2007, respectively. In so far as the fifth (5th) invoice is concerned, i.e., invoice no.827/26921, dated 06.06.2007, the logic and/or, rationale, which has been put forth on behalf of the Assessee to explain the mistake does appear to work. This is because, if, 50% of the credit available to the selling dealer was mistakenly recorded by its Clerk, then, the Assessee should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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