TMI Blog2018 (5) TMI 1511X X X X Extracts X X X X X X X X Extracts X X X X ..... its and calculate the percentage of the credit to be distributed to them. This can only come up either through audit or investigation - The only person who should knowing this and distribute the credit appropriately is the ISD and they have violated the rules. As far as the appellant is concerned, he has taken credit on the basis of the invoice wrongly and when pointed out by the audit, reversed the credit and also paid interest thereon. The violation of Rule 7 (d) is on the part of ISD who is the registrant unit in Kolkata. Penalty - Held that: - there is no evidence in the records of fraud, collusion, wilful misstatement or suppression of facts or contravention of any provisions of the Act or Rules with the intent to evade payment of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy paid by them. It is also proposed in the show cause notice to impose a penalty under rule 15(2) of CENVAT Credit Rules, 2004 read with Section 11 AC of Central Excise Act, 1944. After following due process, the Dy. Commissioner vide Order-in-Original No. 09/2015-16, dated 16.03.2016 confirmed the demand and interest and appropriated their amounts already paid by them against these demands. He also imposed a penalty of ₹ 3,82,704/- under rule 15(2) of CENVAT Credit Rules, 2004 read with Section 11 AC of Central Excise Act, 1944, being the amount of CENVAT credit wrongly availed. 3. Aggrieved, the appellant filed an appeal before the Commissioner (Appeals), who vide Order-in-Appeal No. HYD-EXCUS-001-APP-028-17- 18, dated 22.05.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same, they have reversed not only the excess credit but also paid interest thereon. He further argued that there is no net gain to the group itself because if excess credit was transferred to this unit, proportionately less credit would have been transferred to other units and hence the matter is revenue neutral as far as the department as well as the company are concerned. For these reasons, he prays that the penalty imposed by Ld. Commissioner (Appeals) may be set aside. He relied upon the following case laws: a) Principal CCE, Mumbai-II vs. Godrej Industries Limited 2018-TIOL- 923-CESTAT-MUM. b) Commissioner vs. Tejas Agency 2014(34) STR 803 (Guj.) c) Calderys India Refractories Ltd. vs. CCE, Aurangabad 2014(36)STR 102 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as input service to all the units shall be distributed to all the units pro rata on the basis of the turnover of such units during the relevant period to the total turnover of all the units, which are operational in the current year, during the said relevant period 6. The ISD has violated and by taking credit on such invoice, the assessee has violated rule 15 (2) of CENVAT credit Rules 2004 read with Section 11 AC of Central Excise Act, 1944. Ld. Commissioner (Appeals) was correct in upholding the penalty and also reducing it by 50% as the information is already available on the statutory records of the appellant. 7. Heard both sides and perused the records. The facts of the case are not in dispute, the appellant has availed excess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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