2018 (7) TMI 323

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....,934/- on certain items viz., mill plates, MS beams, MS angles, channels, MS joists, TMT bars, MS pipes, MS Bars, which were used for manufacture of capital goods. It is alleged by the department that they were not entitled to this credit and before issue of show cause notice; the appellant paid the applicable duties along with interest on 15.08.2012. Subsequently, the show cause notice dated 01.11.2013 was issued seeking to appropriate the amount paid as CENVAT Credit and interest and seeking to impose a penalty equal to the amount of wrong CENVAT Credit availed. The Learned lower authority had confirmed the demand and interest and appropriated the amounts already paid by them towards these confirmed demands. He also imposed a penalty of R....

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....(i) only a penalty of 50% is imposable in the present case. Further no option of incentive under Clause (c) of Section 11 AC payment of 25% penalty imposed is given to them in the Order-in-Original. Therefore, prayed that the Order-in-Appeal may be set aside extending consequential benefits. 3. The Learned Departmental Representative on the other hand has vehemently opposed the appeal and reiterated the arguments made in Order-in-Appeal. It is his contention that the appellant was working under self-assessment scheme as applicable and it is his responsibility to ensure that CENVAT Credit is properly availed and no CENVAT Credit is availed on ineligible inputs. The ER-1 returns filed by the appellant do not reflect that they had availed C....

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....ly but it is imposable when such taking or utilising the CENVAT credit is by reason of (a) fraud, or (b) collusion, or (c) any wilful mis-statement, or (d) suppression of facts, or (e) contravention of any provisions of the Act or Rules with an intent to evade payment of duty. Other cases of wrong availment of CENVAT credit are covered by Rule 15(1) of CENVAT Credit Rules, 2004. It is not in dispute that the credit has been taken wrongly by the appellant. Now the other elements required to fasten the penalty are not evident from the show cause notice. Para 5 of the show cause notice says the fact of availment of utilisation of credit on ineligible items was not known to the department since the same was not reflected in the statutory return....