2018 (11) TMI 1366

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....d 08.05.2017 was issued proposing to recover wrongly availed CENVAT Credit under Rule 14(1)(i) of the CENVAT Credit Rules, 2004 read with Section 11A(4) of the Central Excise Act, 1944; demand of duty under Section 11(4) of the Central Excise Act being the CENVAT payable on the excisable goods alleged to be found short; and applicable interest and penalty. After due process of law, the lower adjudicating authority vide Order-in-Original No. 04/2017 dated 29.09.2017 confirmed the disallowance of wrongly availed CENVAT Credit of Rs. 2,35,943/-, duty demand of Rs. 11,80,169/- being the CENVAT payable on the excisable goods found short, interest under Section 11AA(1) of the Central Excise Act and also imposed equal penalty under Section 11AC(1)....

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....ppression of facts, fraud, collusion, etc. to evade payment of duty; that owing to the November & December 2015 floods, the whole premises was submerged in flood water to an extent of over five feet and that therefore they were not in a position to produce the relevant documents that were requested; that the appellant had not received any communication from the Department with respect to calling of records. He thus submitted that the imposition of penalty under Section 11AC of the Central Excise Act is not correct. He relied on the case of Raman Ispat (P) Ltd. Vs. C.C.E. & S.T., Meerut - 2016 (336) E.L.T. 688 (Tri. - Allahabad) wherein the Tribunal had held that when there is no mala fide intention, penalty cannot be levied on the assessee.....

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....he lower authorities have not given any finding on the factual contentions urged as also the pleading of the Ld. Advocate with regard to the difference in SAP value and physical value and nothing else. After considering the rival contentions, I am of the view that the lower authorities should consider the above facts and then give a proper finding before arriving at any shortage in terms of either inputs or finished goods, for which reason I remand the matter back to the file of the adjudicating authority for passing a de novo adjudication Order after considering the contentions of the appellant and also the case-law that the assessee/appellant may rely on. The adjudicating authority shall give reasonable opportunities before finalizing the....