2013 (7) TMI 530

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.... Per. Archana Wadhwa :- After hearing both the sides, I find that proceedings were initiated against the appellant for denial of credit of cess and higher education cess paid by the input supplier which was a 100% export oriented unit. As per the Revenue, the formula prescribed for calculating the admissible credit was only in respect of the duties by the 100% EOU and the credit of cess and hi....

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.... penalties of Rs. 1,25,000/which stands imposed upon the appellant under the provisions of Rule 15 (1). I have seen the said rule which provides for imposition of penalty in cases where the assessee takes wrong Cenvat credit which shall be not exceeding the duty on the excisable goods in respect of which any contravention has been committed or Rs. 2,000/rupees whichever is greater. The contention ....

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....iod when the said change occurred. As such, I agree with the learned advocate that this might have been the result of being non-aware of the changed formula. However, provisions of Rule 15 (1) do not called for any mens-rea and provides for imposition of penalty in the case of wrong availment of credit. Nevertheless the penalty by itself, being penal in nature, includes an element of malafide. Fur....