2021 (5) TMI 849

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....2009, dated 31-8-2009, upheld the allegations in the Show Cause Notice thereby confirming the reversal of wrongfully availed credit and demanded interest of Rs. 12,094/- and also imposed penalty of Rs. 1,76,115/-. Against such order, the appellant preferred appeal before the Commissioner (Appeals) and vide Order in Appeal No. 470/2010, dated 25-10-2010 the appellate authority upheld the adjudication order. Against such order passed by the appellate authority, the appellant preferred appeal before the Tribunal and vide Final Order No. 613/2011, dated 20-5-2011, the Tribunal remanded the matter to the original authority with a specific direction to pass appropriate orders after verification whether the capital goods were in the factory. In su....

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....s the penalty. Against such order, the matter had reached the Tribunal and vide Final Order dated 20-5-2011, the Tribunal passed the following order :- "1. ....... He submits that once the assessees establish that the machine was available in their factory, even though they would not challenge the reversal of credit by way of seeking re-credit thereof, penal action against them would not be warranted. 2. On a careful consideration of submissions by both sides, I find that the matter can be decided by directing that the officers visit the factory of the assessees and satisfy themselves as to the availability of the spectrometer in question in the factory. If the assessee is able to prove that the spectrometer in i....

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....nside the factory is correct. Therefore, the demand of interest on the wrongly availed credit is also correct. He therefore supported the findings in the impugned order. 4. Heard both sides. 5. On perusal of the final order dated 20-5-2011, the Tribunal has directed officers to visit the assessee's factory and satisfy themselves as to the availability of the Spectrometer in question. After such verification, it is seen noted in the de novo adjudication order that the capital goods were present in the factory. Thus the allegations raised in the Show Cause Notice that the capital goods were not received in the factory and that the credit availed is wrong is without any factual basis. Further, it can also be seen that the appel....