TMI Blog2013 (5) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... there was shortage of 32.100 MT and 20.390 MT in respect of Cenvat Credit availed MS Ingots and Silico Mangnese, involving Cenvat Credit of ₹ 3,50,125/-, there was shortage of 80.500 MT in the stock of M.S.Bar (finished goods) involving duty of ₹ 4,09,766/-. Thus the total Cenvat Credit duty involved on the inputs and finished goods on found short was of ₹ 07,59,891/-. Inquiry was made with Sh. Atul Bhatnagar, the Authorized Signatory of the respondent who admitting the shortage, stated that the same may be due to mistake in recording of the weight of the raw material and the finished goods by the workers. However the respondent at that time voluntarily deposited the said amount of Cenvat Credit and duty on 26.08.2008. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Departmental Representative who pointing out to the findings to the Commissioner (Appeals) in the impugned order, pleaded that the Commissioner (Appeals) s finding that the appellant have contravened of the provisions of Central Excise Rules with intention to evade the payment of duty is containing to his finding in the same order that the adjudicating authority has not supported his findings with any facts/documents to prove that appellant had removed the said inputs and finished goods clandestinely, that once Commissioner (Appeals) has given finding that contravention of the provisions of Central Excise Rules, 2002 was with intention to evade the duty, penalty under section 11AC would become attracted and in that case there would be no d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cenvated inputs the duty/cenvat credit demand itself would not be sustainable. If the Commissioner (Appeals) s findings is that there was an intention on the part of respondent to evade the duty, penalty under section 11AC would be attracted and in that case, in view of Apex Court in the case of Rajasthan Spinning Weaving Mills (Supra) there would be no discretion to the Commissioner (Appeals) to impose penalty lesser than duty demand/cenvat credit demand upheld. But the Commissioner (Appeals) in the same order has given two contradictory findings. In view of this the impugned order is set aside. The matter is remanded to Commissioner (Appeals) for de-novo decision. In course of de-novo proceedings the Commissioner (Appeals) must clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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