2013 (1) TMI 505

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....espondent. [Order per : Ashok Jindal, Member (J)]. -  The applicants are seeking waiver of pre-deposit of a sum of Rs. 11,58,012/- demanded on account of wrong availment of CENVAT credit of CVD paid by the applicants. The facts of the case are that one M/s. Shin Ho Petrochemicals (India) Ltd. imported one machine, namely, 'Product Screen Separator Drive' from their group company and declare....

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....he duty of Rs. 18,01,115/- is having a component of Rs. 11,58,012/- as CVD. As the importer firm was taken over from the applicants, therefore, the applicants took the CENVAT credit of CVD paid by the importer. During the course of audit, it was pointed out that as the CVD was paid on detection by the Customs, therefore, applicants are not entitled to take CENVAT credit of CVD paid by the importer....

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....was not proposed under Section 114A of the Customs Act, 1962 which deals exactly with the situation, where duty has not been paid or short paid or erroneously refunded on account of fraud, collusion, willful mis-statement, suppression of facts and non-payment of duty with intent to evade the duty, penalties leviable and Rule 9(1)(b) also deals with the same situation whether the additional amount ....

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....4. 4. Heard both sides and considered their submissions. As contended by the learned Advocate for the applicants, penalty under Section 114A of the Customs Act, 1962 is leviable for demand of additional amount of duty on account of fraud, collusion, willful mis-statement, suppression of facts and nonpayment of duty with an intent to evade payment of duty and on that amount credit is not avai....