TMI Blog2018 (12) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... nd when the audit pointed out the irregular availment of credit, the appellant reversed the same along with interest and also paid 25% of the penalty as directed by the original authority. The department has not brought any evidence on record to show that the appellant have suppressed the material fact with intent to evade payment of duty. As and when it was brought to their notice, they revers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit, it was noticed that the appellant had availed excess credit of ₹ 3,123/0 compared to Annexure-10 Registry, utilized an amount of ₹ 11,088/- without availability of credit and taken a wrong opening balance of service tax credit of ₹ 14,37,832/- in ER-1 return. The Department entertained the view that the appellant has taken irregular CENVAT credit. On these allegation, a sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order imposing the penalty is not sustainable in law as the same has been imposed without considering the facts and the law. He further submitted that the appellants have wrongly availed the CENVAT credit and as and when the audit pointed out, the same was reversed along with interest muc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tri.-Del.) Kumar Organics Products Ltd. vs. CCE: 2014 (307) ELT 774 (Tri.-Bang.) CCE vs. Shrigonda Sahakari Sakhar Karkhana Ltd.: 2015 (327) ELT 429 (Tri.-Mum.) Tata Motors Ltd. vs. CCE: 2014 (311) ELT 353 (Tri.-Bang.) 5. On the other hand, the learned AR defended the impugned order and submitted that the appellant has wrongly taken the CENVAT credit and also utiliz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d appeal. Further, I find that the department has not brought any evidence on record to show that the appellant have suppressed the material fact with intent to evade payment of duty. As and when it was brought to their notice, they reversed the same. Therefore, in view of these circumstances, the ratio of the judgments cited supra squarely apply and penalty is not imposable in such circumstances. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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