2018 (12) TMI 1173

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....he appellant had, between 2004-05 and 2007-08, availed CENVAT credit of tax paid on services used in common for both manufacturing and trading activities without separate accountal of utilization stipulated in rule 6 of CENVAT Credit Rules, 2004 for exclusion from the prescribed payment on the value of traded goods. Commissioner of Central Excise, Thane-I has, in order in-original no. 05/BR-05/Th-I/2010 dated 28th January 2010, confirmed recovery of Rs. 1,02,91,108 under section 11A of Central Excise Act, 1944, along with interest of Rs. 19,97,462 under section 11AB of Central Excise Act, 1944, and imposed penalty of like amount under section 11AC of Central Excise Act, 1944 with the privilege of lesser penalty for discharge of all dues wit....

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....vably, have blemishes, the ingredients precedent for invoking the penal provisions in Central Excise Act, 1944 are claimed to be absent for which Learned Counsel places reliance upon the decision of the Tribunal in Commissioner of Service Tax, New Delhi v. AVL India Pvt Ltd [2017 (4) GSTL 59 (Tri-Del)], in Gujarat Boron Derivatives P Ltd v. Commissioner of Central Excise, Customs & Service Tax (A), Vadodara-II [2017 (348) ELT 105 (Tri- Ahmd)] and in Commissioner of Central Excise, Ghaziabad v. Avon International Pvt Ltd [2017 (5) GSTL 376 (Tri-All)] as precedents in which penalty was not imposed in these very same circumstances. 5. Learned Authorised Representative relies upon the decision of the Hon'ble High Court of Bombay in Mercedes ....

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....t dispute where the wrong availment is claimed to have had its genesis in human interface with the SAP system. As the incorrect availment is not disputed and was reversed, the ratio of the decision in re Rajasthan Spinning & Weaving Mills, which relates to deliberate evasion of duty with attendant discontinuance of documentation whereas the present dispute pertains to a temporary recording of credit which is, primarily, a book entry, is not a precedent. Furthermore, it is worthwhile noting that the said decision was rendered in the context of the observation that '2..... We completely fail to see how payment of the differential duty, whether before or after the show cause notices issued, can alter the liability for penalty, the condition....