TMI Blog2017 (11) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,37,295/- on 22/01/2011 and paid ₹ 1,65,464/- from CENVAT credit - non-payment of duty, non-obtaining of Central Excise registration, not following Central Excise registration procedures etc. cannot be considered as fraud, collusion or suppression of facts unless there is a conscious or deliberate withholding the information on the part of the assessee - penalty u/s 11AC read with Rule 25 set aside. The second impugned order dt. 25/11/2013 passed by the Commissioner(Appeals) is not sustainable in law as the earlier Commissioner(Appeals) has already allowed the CENVAT credit of ₹ 14,74,189/- on the Bill of Entry dt. 27/01/2009 and there was no need to issue the fresh SCN and denial of CENVAT credit. Appeal allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding the Bill of Entry in original and challans for payment of customs duty were transferred to the appellant vide letter dt. 15/01/2010. The appellant intimated the said fact to the Superintendent, Central Excise, Mangalore along with copies of Bill of Entry and the payment challan under letter dt. 18/03/2010. During the relevant period, appellant obtained scrap by breaking the ship and removed the scrap to the buyers under commercial invoices. Since the appellant was already registered with the Central Excise as a dealer for trading of iron, he was under the belief that no separate registration was required for breaking and obtaining the metal scrap from the ship and therefore the appellant did not obtain separate registration for brea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 25 of the CENVAT Credit Rules, 2005. Aggrieved by the said order, the appellant has filed the present appeal. 4. Heard both the parties and perused records. 5.1. The learned counsel for the appellant submitted that the impugned orders passed by the Commissioner(Appeals) imposing penalty under Section 11AC read with Rule 25 alleging suppression is not sustainable in law. He further submitted that the lapse was committed by the appellant on account of lack of knowledge of the Central Excise Rules and procedure but the same does not prove that the appellant has committed fraud, collusion or misstatement or suppression of fact with a view to evade payment of duty. He further submitted that the appellant is an ordinary scrap dealer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the name of the appellant and no CENVAT credit invoice was issued by the Fair Deal Suppliers under Order-in-original dt. 19/12/2011. The appellant has prayed the Additional Commissioner to withdraw the said notice when the case was pending adjudication before the Additional Commissioner, Order-in-Appeal dt. 22/01/2013 was passed along with CENVAT credit of ₹ 14,74,189/- under Bill of Entry No.27/2009 dt. 27/01/2009 and the appellant submitted the copy of the appellate order to the Additional Commissioner and requested to withdraw the show-cause notice in view of the Commissioner(Appeals) order. But the Additional Commissioner still disallowed the CENVAT credit ignoring the decision of the Commissioner(Appeals) on the same ground th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dt. 21/01/2013 passed by the Commissioner(Appeals) wherein the Commissioner(Appeals) allowed the CENVAT credit availed on Bill of Entry dt. 21/01/2009 but imposed penalty of ₹ 3,02,756/- under Section 11AC read with Rule 25 of the Central Excise Rules, 2002. Further I find that there is no suppression on the part of the appellant. In fact, the appellant himself voluntarily gave intimation to the Range Officer regarding the purchase of the vessel vide letter dt. 18/03/2009 on which the Department has started the enquiry and thereafter issued show-cause notice. Thereafter the appellant paid the duty of ₹ 1,37,295/- on 22/01/2011 and paid ₹ 1,65,464/- from CENVAT credit. Further I also find that in the judgments relied upo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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