TMI Blog2019 (9) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... of the input credit, which the appellant was availing. It is only during the subsequent audit that this objection was raised and the present show-cause notice was issued. The appellant is entitled to avail the benefit of less penalty provided under Second proviso to Section 78(1) of the Act which he has rightly availed. The order of the Commissioner(Appeals) is contradictory when he says that payment of interest and penalty is found to be correct as per the provisions of Rule 14 of CCR, Section 78 of the Finance Act, 1994 and Rule 15(3) of the CCR and also observed that it needs no interference. But thereafter, he also imposed equal penalty under Section 78 which according to my considered opinion is not sustainable. Further the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the exempted service i.e. trading. Department alleged that they were liable to pay amount of 6% or 7% on the value of exempted goods as per Rule 6 of the CENVAT Credit Rules 2004 (in short, CCR) and issued show-cause notice dt. 24/08/2017 demanding ₹ 84,79,638/- for the period August 2014 to February 2017 under Rule 6(3)(i) of the CCR, 2004. The assessee reversed an amount of ₹ 10,34,452/- being the credit attributable to the exempted activity of trading along with interest of ₹ 2,25,358/- on 14/08/2017 and penalty of ₹ 1,55,168/- on 25/09/2017 i.e. within 30 days from the receipt of notice. After considering the reply of the assessee, the lower authority confirmed the demand of 6% / 7% made in the notice along w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d objection, the Department has issued notice alleging suppression with intent to evade payment of duty, which is not sustainable in law. In support of this, he relied upon the decision of this Tribunal in the case of MTR Foods Ltd. Vs. CCE, Bangalore [2014(3120 ELT 730 (Tri. Bang.] wherein the Tribunal held that when Department accepted the correctness of the availment of CENVAT credit and not found any wrong in the first audit and raised the objection on the same during the subsequent audit and issued a show-cause notice invoking longer period to recover the same is not sustainable. He further submitted that the appellant has rightly reversed the proportionate credit attributable to the trading and also paid the interest and also paid 15% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 78 which is not sustainable in law. In support of his submission, he relied upon the decision in the case of Continental Foundation jt. Venture Vs. CCE [2007(216) ELT 177 (SC)] wherein it is held that mere omission to give correct information cannot be construed as suppression so as to invoke the longer period of limitation under Section 11A. 5. On the other hand, the learned AR defended the impugned order. 6. After considering the submissions of both sides and perusal of the material on record and the decisions relied upon by the appellant, I find that the impugned order imposing penalty under Section 78 equal to the proportionate credit is not sustainable in law because of the fact that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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