2018 (6) TMI 979 – CESTAT MUMBAI – TMI – Waiver of penalty u/s 11AC – application of wrong notification – Held that:- This is not a case where the appellant has cleared the goods clandestinely. However, they were clearing the goods on payment of duty applying the wrong notification at the same time they were availing the CENVAT credit. Therefore, the notification which they claimed was not admissible to them – there is no suppression on the part of the appellant. The ingredients for imposing penalty under Section 11AC was wrongly invoked – Section 11AC is not applicable hence the penalty imposed under Section 11AC is set aside – appeal allowed – decided in favor of appellant. – E/87772/2017 – A/86613 / 2018 – Dated:- 23-4-2018 – Shri Rames
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ailing CENVAT credit and paying duty @1%/2% in terms of Notification No. 1/2011-CE during the period from March 2012 to October 2013. The appellant paid the differential excise duty. Thereafter, adjudicating authority confirmed the demand of duty and also imposed penalty of equal amount under Section 11AC. Being aggrieved by the order-in-original, the appellant filed appeal before the Commissioner (Appeals) only for wavier of penalty imposed under Section 11AC. The Learned Commissioner (Appeals) upheld the order-in-original holding that as per judgment of Hon ble Supreme Court in the case of Union of India v. Dharmendra Textile Processors [2008 (231) ELT 3 (SC) penalty imposed under Section 11AC cannot be reduced. Therefore, appellant is be
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department to issue show cause notice well within the normal period. The audit officer also pointed out this discrepancy from the records. Therefore, there was no suppression of the facts on the part of the appellant. The appellant have not disputed the demand and paid the same on pointing out. Therefore the confirmation of duty and payment thereof stand maintained. In the facts, as discussed above, there is no suppression on the part of the appellant. The ingredients for imposing penalty under Section 11AC was wrongly invoked. As regard the judgment of the Hon ble Supreme Court in the case of Dharmendra Textile Processors it deals with the a situation where there is suppression of fact and imposition of penalty under Section 11AC is correc
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