TMI Blog2023 (1) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... plea of BRPL that they had only availed CENVAT Credit in the Books of Account at Jajpur requires to be verified/scrutinized by the Department independently, if such claim is filed by the Appellant . The Court is informed that since the Department had filed the present appeal more than seven years ago, it has still not undertaken the exercise of verification of the Books of Account of BRPL to ascertain in fact if it had availed CENVAT Credit at Jajpur without commencing manufacture of Iron Ore concentrate at Barbil - Without that exercise being completed, it will not be possible for the Department to ascertain if CENVAT Credit was wrongly claimed. This is one of the essential conditions for attracting the penalty under Rule 15(1) of the CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Mishra, Senior Standing Counsel For the Respondent : Ms. Pami Rath, Advocate ORDER I. A. No.5 of 2022 1. Having heard learned counsel for the parties, we are satisfied that the prayer made in this application deserves to be allowed without prejudice to the rights and contentions of the parties. The application is accordingly allowed. 2. Let the necessary amendment be carried out in the writ petition as per the schedule to the application. OTAPL No.8 of 2015 3. The appeal by the Department arises from an order dated 11 th June, 2015 of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Eastern Zone Bench, Kolkata disposing of Excise Appeal No.E-877 of 2011 filed by the Respondent-Assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was exempted under a separate notification dated 1st March 2006, BRPL was not eligible for CENVAT Credit under Rule 6(1) and Rule 6(4) of the CENVAT Credit Rules, 2004 (CENVAT Credit Rules). In the SCN, the Department also proposed invoking Rule 15 (1) of the CENVAT Credit Rules pertaining to penalty. 6. In the adjudication order dated 30th June 2011, the CENVAT Credit to the above extent was disallowed. Further, a penalty of Rs.2 crores under Rule 15(1) of the CENVAT Credit Rules was imposed. 7. BRPL then went in appeal to the CESTAT, which by the impugned order dated 11th June, 2015 held as under: 5.xxx xxx xxx (i) CENVAT Credit would be admissible on the input service, if any, used in bringing the input viz., Iron Ore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent appeal more than seven years ago, it has still not undertaken the exercise of verification of the Books of Account of BRPL to ascertain in fact if it had availed CENVAT Credit at Jajpur without commencing manufacture of Iron Ore concentrate at Barbil. 10. Without that exercise being completed, it will not be possible for the Department to ascertain if CENVAT Credit was wrongly claimed. This is one of the essential conditions for attracting the penalty under Rule 15(1) of the CENVAT Credit Rules. 11. Consequently, the answer to question (i) viz., whether penalty under Rule 15(1) of the CENVAT Credit Rules would stand attracted automatically would hinge upon the finding of wrongful availment of CENVAT Credit. The question therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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