2016 (6) TMI 609

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....nt ORDER [ Order per  Sulekha Beevi, C.S. ] 1. The grievance of Revenue in this appeal is that lower authority failed to impose equal amount of penalty under Section 11 AC of Central Excise Act, 1944. 2. The respondents were issued a show cause notice alleging undervaluation and proposing demand of Rs. 35,18,547/-, along with interest and imposition of penalty under 11AC of Centra....

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....ing the contention that original authority ought not to have given the benefit of Cenvat credit and that the penalty imposed should be equal to the demand of Rs. 35,18,547/- under 11 AC of Central Excise Act, 1944. 3. The Commissioner (Appeals) in the impugned order has noted that the lower authority allowed the Cenvat credit after perusal of invoices and detailed worksheet submitted by assesse....

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.... Cenvat credit is Rs. 5,36,375/- the penalty imposed should be equal to Rs. 35,18,547/- as this is the demand which is confirmed. 6. The learned counsel appearing for respondents Shri R.Muralidhar submitted that the department in this appeal, having not challenged the determination of duty cannot challenge the imposition of penalty only. Section 11 AC provides for penalty in cases of short levy....

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....ord duty as determined . The Commissioner (Appeals) has relied on several judgments while upholding the view taken by adjudicating authority in giving the benefit of adjusting the Cenvat credit.   8. In Aditya Industries Vs. CCE, Hyderabad 2007(220) ELT 196(Tri-Bang) the Coordinate Bench of the Tribunal observed that, since the Modvat credit available to the appellants is much more than th....