2008 (6) TMI 438

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....Appellant. Shri B.L. Meena, SDR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. -  This appeal is against a penalty of Rs. 1,42,022/- imposed under Rule 57-I(4) and another penalty of Rs. 10,000/- under Rule 173Q of the Central Excise Rules, 1944. The department had found certain MODVAT credits on inputs have- been irregularly taken by the appellants during the period Jan....

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.... the lower appellate authority has sustained the penalty under Rule 57-I(4) for the period from 28-9-1996 on the ground that the party had contravened Rules 57A, 57F and 57G with intent to evade payment of duty punishable under Rule 57I. Learned counsel points out that the requisite ingredients for a penalty under Rule 571(4) were not alleged in the show-cause notice. We have heard the learned SDR....

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....f the show-cause notice, we find that it was alleged that the assessee had contravened Rules 57A, 57F and 57G with intent to evade payment of duty. "Contravention of Rules with intent to evade payment of duty" was one of the grounds under Rule 57-I(4) to impose penalty on a person who had irregularly availed MODVAT credit on inputs. We find that Rule 173Q was also invoked in the operative part of ....

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....versal of credit. Hence it must be held that wrong availment of MODVAT credit on inputs is an admitted fact. The only question which remains to be considered is whether it was done with "intent to evade payment of duty." In this context, it is submitted by the learned counsel that the show-cause notice did not allege any facts to establish "intention for evading payment of duty". It is submitted t....