IND-SWIFT LIMITED Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) BEING aggrieved with the order passed by the Commissioner (Appeals), vide which he has set aside the personal penalty of Rs. 1,05,241/ - imposed upon the respondents under Section 11 AC of Central Excise Act, 1944, revenue has preferred the present appeal.

(2.) THE dispute, as regards the duty, relates to Cenvat credit availed in respect of the capital goods, in respect of which the appellants also claimed depreciation under Section 32 of Income Tax Act, 1961. On being pointed out, the appellants accepted the above fact and reversed the Cenvat credit of Rs. 1,05,241/ - and also paid the interest of Rs. 25,454/ -. The original adjudicating authority, while confirming the above payments made by the assessee, imposed personal penalty of identical amount. On appeal, the Commissioner (Appeals) set aside the same by observing that the entire duty was paid by the assessee before the issuance of the show cause notice. The said order is impugned before us.

(3.) AFTER hearing both sides, I find that the Larger Bench of the Tribunal in the case of Piaggio Greaves Vehicles Ltd. v. CCE, Pune held that when the credit was availed by making entries in RG -23A register and the same was not utilized and was reversed by the assessee at the insistence of the revenue, there is no justification for imposition of penalty. The appellant submits that though the credit was availed but the same was not utilized by them and was lying unutilized in the records, imposition of penalty was not justified.