2012 (6) TMI 397

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.... found that the appellants had removed capital goods on which credit had been taken to another unit of the same company. The capital goods had been used for some time before such clearance. The department took a view that appellants were required to reverse the cenvat credit equal to the credit taken as per the provisions of Rule 3(4) of Cenvat Credit Rules, 2002. Thereafter proceedings were initiated by issue of show cause notice in 2008 in respect of removals made in 2006.   3. The ld. counsel for the appellants submitted that in this case, the ld. Commissioner (Appeals) in his order has clearly observed that during the relevant time there was no provision for payment of duty on used capital goods. He has relied upon the decision ....

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....ommissioner has reached the conclusion that no penalty is imposable would show that he has come to the conclusion that this was not a case where suppression of facts, fraud and mis-declaration etc. could have been invoked for confirmation of the demand. Once penalty under section 11AC is set aside on the ground that there was no suppression of fact, mis-declaration etc., the question of the confirmation of demand also does not arise. Therefore the ld. counsel submits that this part of the order confirming differential duty demand on the basis of duty calculated on the depreciated value and interest thereon may be set aside. The ld. A.R. would submit that the decision in Geeta Industries Pvt. Ltd. case is squarely applicable to the present c....