2018 (7) TMI 988

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ged in manufacture of nylon fabric and they are also availing cenvat credit under Cenvat Credit Rules, 2004. During an audit in August, 2015 it was noticed that the appellant had availed and utilized the cenvat credit of Basic Customs Duty, Customs Education Cess and Customs Secondary And Higher Education Cess totalling to Rs. 15,37,828/-. The same was alleged to have been wrongly availed. Show Cause Notice dated 20.12.2016 was issued. Perusal thereof shows that the alleged availment of the above said amount was got redeposited by the appellant with the Department alongwith the interest even prior the issuance of Show Cause Notice. Due to the said reason, the original Adjudicating Authority vide the Order dated 12.06.2017 had dropped the pr....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....utting these arguments has submitted that the deposit in the present case is not a suo moto act of the appellant rather the deposit of wrongly utilized cenvat credit was made only after the audit team of the Department noticed it and asked the appellant to Act accordingly. The admission on the part of the appellant is sufficient to hold these mis-representation on his part for the simple reason of evasion of duty. It is also submitted that the said availment was never shown by the appellant in their returns which is sufficient to hold suppression of facts and once both these elements are available, the Commissioner (Appeals) has rightly invoked Section 11AC (1a) of CEA. It is submitted where there was an apparent admission, there was no nee....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ho is liable to pay duty as determined under sub-section (10) of section 11A shall also be liable to pay a penalty not exceeding 10% of the duty so determined or rupees five thousand, whichever is higher: Provided that where such duty and interest payable under Section 11AA is paid either before the issue of Show Cause Notice or within 30 days of issue of Show Cause Notice, no penalty shall be payable by the person liable to pay duty or the person who has paid the duty and all proceedings in respect of said duty and interest shall be deemed to be concluded; (c) where any duty of excise h as not been levied or paid or has been short-levied or shortpaid or erroneously refunded, by reason of fraud or collusion or any willful ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....vasion available with the appellant while availing the impugned cenvat credit and even while utilizing the same, the Hon'ble Supreme Court in Hindustan Steel Limited vs State of Orissa 1978 (2) ELT (J 159)(S.C.) has held that no penalty should be imposed for any technical or breach of legal provisions or where the breach flows from the bonafide belief that the offender is not liable to act in the manner prescribed by the statute. In another case, Tamil Nadu Housing Board vs CCE, Madras 1994 (74) ELT 9 (S.C.) the Hon'ble Apex Court has held that the words and phrases i.e. fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or the Rules made thereunder with intend to evade ....