2010 (6) TMI 412

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....t on the imported inputs namely Styrene Butadine Latex. While availing Cenvat credit, the appellant had availed Cenvat credit on the CVD and also on the Special Additional Duty when the goods were imported. The said imported goods were cleared by the assessee 'as such' under the cover of duty paying documents issued by them. It was noticed by the lower authorities that they have paid only the Basic Customs Duty and Education Cess and they have not paid the amount of Additional Duty availed by them as a cenvat credit. On being pointed out, the assessee reversed the entire amount of Special Additional Duty from PLA on 28-3-2007. A Show Cause Notice was issued for appropriation of such amount. The Adjudicating Authority appropriated the amount....

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....s submission that the assessee is liable for imposition of penalty under Rule 15(2). 6.I have carefully considered the submissions made at length by both sides and perused the records. 7. It is seen from the OIO that the Adjudicating Authority has imposed equivalent amount of penalty on the appellant for non-reversal of the Special Additional Duty when the inputs were cleared 'as such'. The provisions of Rule 15(2) for imposition of penalty equivalent to duty reads as under :- "RULE 15. Confiscation and penalty. — (2) In a case, where the CENVAT credit in respect of input or capital goods or input services has been taken or utilised wrongly by reason of fraud, collusion or any wilful misstatement or suppressi....

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....ering the figures of duty paid and Cenvat credit availed annually, I do not find any reason to believe that the assessee knowingly indulged in unauthorised availment of Cenvat credit of less than Rs. Two lakhs. I have also perused several judicial authorities cited by both sides for canvassing their respective cases. The Revenue has cited the decision of the Larger Bench of the Tribunal in CCE v. Ilpea Paramount Pvt. Ltd., reported in 2007 (213) E.L.T. 500 (Tri.-LB), wherein it was decided that in a case where evasion by fraud was found, equal penalty had to be mandatorily imposed and duty not paid had to be demanded with interest. In the case of Sony (I) Ltd. v. CCE (supra), where facts were that fraudulent evasion was persevered in by the....