TaxTMI 
TaxTMI 
TaxTMI 
2015 (7) TMI 496
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....ayer for change of cause title is allowed. MA is disposed. 2. Appellant M/s.R.S. Mills Pvt. Ltd. in Appeal E/139/2008 is represented by Shri M. Saravanan, Consultant. None is represented for Appellant Shri K. Palanisamy, in Appeal No. E/140/2008. Since the issue involved in these appeals is arising out of common impugned Order-in-Appeal, both are taken up together for disposal. 3. The short issue in this case relates to irregular availment of capital goods credit availed on the CVD paid on the imported capital goods cleared under EPCG licence where no CVD was paid. Appellant imported three machines and cleared EPCG licence @ concessional rate of 5% where CVD is exempted whereas the appellant availed credit of Rs. 48,52,516/- as per the as....
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....t on 31.1.2004 and also paid the interest amount of Rs. 6,20,739/- on 20.2.2004. Since the audit conducted verification and as per audit report they have complied with the report, they were under the bonafide belief that the issue was closed. He drew my attention to para-13 of Audit Manual of Excise Audit 2000 at page 6.139 wherein at para (13) it is stated that once the assessee agrees with the audit findings in full and assessee makes the payment audit para should be closed. Whereas instead of closing the audit report, the department initiated proceedings and the headquarters (Preventive) registered offence case and SCN was issued on 30.10.2006 on the ground of suppression of facts for imposing equivalent penalty under Section 11AC. This ....
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....f duty. He relief on the following case laws :- (i) Gulabchand Silk Mills Pvt.Ltd. Vs CCE Hyderabad 2005 (184) ELT 263 (ii) Amex Alloys Pvt. Ltd. Vs CCE Coimbatore 2013 (296) ELT 229 (iii) UOI Vs Rajasthan Spinning & Weaving Mills 2009 (238) ELT 3 (SC) 6. After hearing both sides, I find that the short issue relates to imposition of equal penalty on the appellant and penalty on co-noticee as the appellants have already paid the entire amount and also paid the interest. On perusal of the records, I find that entire issue of wrong availment of credit was detected by the officers of internal audit at the appellant s unit. This is evident at para-4 of the OIO and para 6.4 of OIA wherein it is clearly recorded that officers visited the appel....
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....t to state that under normal assessment of any B/E on regular imports, if CVD is exempted on any goods, the B/E itself specifically indicate the CVD is "NIL". Whereas in the present case considering the imports under EPCG and the circumstances explained above that the imports are handed by Head office and the goods received at the factory located oat different place, it is a bonafide mistake of the employee of the company who took the credit of CVD amount mentioned in the assessed Bill of Entry. There appears to be no suppression of facts with intention to evade payment of duty as alleged by Revenue. In this regard, I rely the Hon ble Karnataka High Court decision in the case of CCE Bangalore Vs Geneva Fine Punch Enclosures Ltd. (supra) whe....
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....e Tribunal in the instant case on a careful consideration of the material on record has held firstly that there is no determination of duty. Secondly, the aforesaid requirement i.e., the cause of evasion of duty is not mentioned in the show cause notice. Further that the entire duty and interest was paid voluntarily on being pointed out. It held that no case for imposing the penalty is made out. The commissioner was in total error in passing the order and imposing the penalty. Under these circumstances, we do not find any infirmity in the order passed by the Tribunal. No substantial question of law involved in this appeal that arises for consideration. Hence, the appeal is dismissed." This Tribunal on identical issue waived penalty in the ....