2006 (4) TMI 35

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....ainst the Order-in-Appeal passed by the Commissioner of Central Excise (Appeals), Salem in the appeal filed by the department against the Order-in of the Assistant Commissioner, Coonoor Division. In the Order-in Original the Assistant Commissioner had dropped the proposals to demand Rs.2,229/-being  interest on the excess Cenvat credit availed by the appellants under Rule 12 of the Cenvat Cre....

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.... supported their appeal, wherein a penalty imposed under Section 114A of the Customs Act was set aside for the reason that the show cause notice and the adjudication order had not contained proposal to demand duty and confirmation of demand respectively under Section 28(2) of the Customs Act. When there was no demand of duty there could be no penalty, as penalty under Section 114A had quantitative....

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....ity had dropped the proceedings. the department filed an appeal and the Commissioner (Appeals) decided the appeal demanding the interest and imposing penalty as proposed in the show cause notice. The demand of interest and imposition of penalty in the circumstances in respect of the goods involved were as provided under Rules 12 and 13 respectively of the Cenvat Credit Rules, 2002. Therefore, the ....

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....ed." It can be seen that the person liable to pay duty or interest as determined under Section 28 is also to be made liable to pay a penalty equal to the duty amount or interest so determined. Therefore, there is a direct nexus between the duty demanded and the penalty imposed. The additional fact relevant to the decision in that case was that the assessments involved were provisional and not f....