2024 (10) TMI 448

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.... vehicle parts. During audit verification, it was noticed that there was in incorrect availment of CENVAT credit of Rs.7,57,347/- during the period from 31.3.2012 to 28.2.2013 by the appellant, which was wrongly utilized for payment of duty for the clearance of goods. Show Cause Notice No. 40/2015 dated 9.9.2015 was issued to the appellant for reversing the wrongly availed CENVAT credit of Rs.7,57,347/- along with interest and for imposing penalty. After due process of law, the learned Original Authority confirmed the proposals made in the Show Cause Notice and demanded the wrongly availed CENVAT credit of Rs.7,57,347/- along with interest and imposed an equal penalty under Rule 15(2) of the CCR read with Section 11 AC. The Original Authori....

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....ses where CENVAT credit is taken for the second time, or for ineligible customs duties/cess, no penalty is leviable, if the said credits are reversed before the issue of Show cause Notice. a. Premier Polytronics Pvt. Ltd. Vs CCE, Coimbatore (2008-228-EL1-619-TRI-Chn) b. Tata advanced materials Ltd. Vs CCE & ST Blr-1 (2015-322-ELT 540-TRI.Bing) c. Gemsynth resins Pvt. Ltd. Vs CCE, Raigod (2009-246-ELT-494-TRI. Mum) d. Indian Petrochemicals Corporation Ltd. Vs CСЕ, Vadodara (2003-157-ELT-548-TRI.Del) e. Commissioner of Central Excise Raipur vs Madhya Bharat Paper Ltd. (2017-346-ELT-317-TRI.Del) f. Commissioner of Central Excise, Pune Vs Jadhav Industries (2016-334-ELT-168-TRI. ....

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...., it is not sufficient for the Original Authority to take the view that the contravention was with the necessary intent to evade payment of tax and invoke a 'statutory penalty' which is automatic and leaves no discretion. He / She has to come to a conclusion that there was an act of deliberate deception committed by the assessee. It has been observed by the Apex Court in Hindustan Steel Ltd. v. State of Orissa, [(1970) 1 SCR 753] that : "The discretion to impose a penalty must be exercised judicially. A penalty will ordinarily be imposed in cases where the party acts deliberately in defiance of law, or is guilty of contumacious or dishonest conduct, or acts in conscious disregard of its obligation; but not, in cases where there is ....