TMI Blog2018 (11) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... s, or contravention of any of the provisions of the Excise Act, or of the rules made thereunder, with intent to evade payment of duty, then the manufacturer shall also be liable to pay penalty in terms of the provisions of Section 11AC of the Act. The undisputed facts are that the availment of irregular CENVAT credit was disclosed by the appellant in the monthly ER-1 returns filed before the department and the credit so availed was not utilized for payment of Central Excise duty on removal of the final products. This fact is evident from the records of the appellant that it had huge balance of CENVAT credit at the time between taking of such irregular credit and subsequent reversal thereof. Thus, under the circumstances of the case, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of fulfillment of the ingredients mentioned in Rule 15(2) of the Rules read with Section 11AC of the Act, the department is not justified in imposing penalty on the appellant. Learned Advocate has relied on the judgment of the Hon ble Supreme Court in the case of Union of India v. Rajasthan Spinning and Weaving Mills [2009 (238) ELT 3 (SC)] to strengthen his stand that under the facts and circumstances of the case, no penalty shall be imposed on the appellant. 4. On the other hand, the Learned Authorised Representative appearing for Revenue reiterates the findings recorded in the impugned order. He relied upon the judgment of the Hon ble Supreme Court in the case of Union of India v. Dharmendra Textile Processors [2008 (231) ELT 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the charges leveled against the assessee. On the contrary, I find that the undisputed facts are that the availment of irregular CENVAT credit was disclosed by the appellant in the monthly ER-1 returns filed before the department and the credit so availed was not utilized for payment of Central Excise duty on removal of the final products. This fact is evident from the records of the appellant that it had huge balance of CENVAT credit at the time between taking of such irregular credit and subsequent reversal thereof. Thus, under the circumstances of the case, it cannot be said that taking of irregular CENVAT credit was due to fraudulent intent on the part of the appellant to defraud the Government revenue. Hence, I am of the considered vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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