2016 (1) TMI 819

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.... Supdt.(AR) ORDER PER DR. D.M.MISRA: Heard both sides. 1. This is an appeal filed against Order-in-Appeal No. 56-57/Kol-III/2011 dated 01.03.2011 passed by the Commissioner of Central Excise (Appeal-I), Kolkata. 2. Briefly stated facts of the case are that the appellant had availed Cenvat Credit on Oxygen and Hydrogen Gas Cylinders, Valves etc. as Capital Goods during the period 2003-2004 &....

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....4,340/- and imposed equivalent penalty under Sec.11AC of CEA,1944 read with Rule 13 of CENVAT Credit Rules,2002. Aggrieved by the said Order, the revenue as well as the assessee filed respective appeals before the Ld. Commissioner (Appeals). The Revenue challenged both reduction in demand & penalty, whereas, the assesse challenged only the penalty imposed. The Ld. Commissioner (Appeals) rejected b....

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....alty under the said provisions but no finding, as to how suppression of fact or mis declaration involved, in availing the credit declaring the same as capital goods, has been discussed/emphasized. Therefore, imposition of penalty under Sec. 11AC of CEA,1944 read with Rule 13 of CENVAT Credit Rules,2002 is not sustainable and hence ought to be set aside. 4. Ld. AR (Revenue) reiterated the findings....

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....de-novo order passed by the adjudicating authority as well as first appellate authority, I do not see any reasoning to support their conclusion of suppression of facts or mis-declaration, while imposing penalty under Section 11AC of CEA,1944 read with Rule 13 of CENVAT Credit Rules,2002. In absence of substantial evidence, supporting suppression of facts/ mis -declaration, in my opinion, penalty u....