TMI Blog2018 (9) TMI 1573X X X X Extracts X X X X X X X X Extracts X X X X ..... 11AC - Held that:- The matter was not free from doubt which is evident from the remand order of the Tribunal itself that on the same issue, the matter referred to the Larger Bench wherein it was decided that duty is payable after considering depreciation - It is also fact that the demand of duty was raised for normal period. Considering all these facts, it is clear that there is no suppression of fact on the part of appellant - Penalty not justified. Demand of Interest - Held that:- As per the provision existing during the relevant period under Rule 14 even if the assessee does not utilize the credit wrongly availed but if it is availed then also the interest was chargeable - demand of Interest upheld. Appeal allowed in part. - E/10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y liability on the removal of capital goods pending before the High Court, so he is not pressing for duty demand. However, he submits that in the facts and circumstances of the case an issue relates to the interpretation of Rule 3(5) and matter was referred to Larger Bench, in Larger Bench case of Navodhaya Plastic Industries Limited (Supra) decided the issue finally. There is no suppression of fact, therefore, the penalty under Section 11AC should not have been imposed by the adjudicating authority. He further submits that though the credit was availed on capital goods and the same was not utilized, therefore, the demand of interest is also not sustainable. In support of his argument, he placed reliance on the following judgments: Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Tribunal itself that on the same issue, the matter referred to the Larger Bench wherein it was decided that duty is payable after considering depreciation. It is also observed that Rule 3(5) does not prescribe any method of calculating the duty in respect of removal of capital goods after use. It is also fact that the demand of duty was raised for normal period. Considering all these facts, it is clear that there is no suppression of fact on the part of appellant; therefore, the penalty under Section 11AC is absolutely illegal and incorrect. I therefore, set aside the penalty imposed under Section 11AC. 5. As regard, the submission made by Ld. Counsel for setting aside the demand of interest, the period involved is 2006-07 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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