K.S. Jhaveri, J. - (1.) By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal of the assessee.
(2.) This Court while admitting the appeal on 12-7-2017 framed the following question of law :- "Whether the Hon'ble CESTAT was correct in setting aside the applicable interest statutorily required under Section 11AB/Section 11AA of Central Excise Act, 1944 and the equal penalty imposed mandatorily under section 11AC of Central Excise Act, 1944 on the assessee?"
(3.) The brief facts of the case are that acting upon an intelligence that M/s. S. Pal Enterprises (Pvt.) Limited, 521-22 RIICO Industrial Area, Chopanki, Bhiwadi are indulged in fraudulent availment of Cenvat Credit in the guise of transfer of material/goods from their Gurgaon unit to Bhiwadi unit while no actual transaction of goods had taken place, officers of the Preventive Branch of Central Excise Division, Bhiwadi visited the factory premises of the assessee situated at 521-22, RIICO Industrial Area, Chopanki Bhiwadi on 28-6-2008. On examination of records of the assessee, it was observed that they have availed Cenvat credit to the tune of Rs. 36,43,618/- (BED 35,37,491/- + Ed. Cess Rs. 70,749/- + Sec. and Hr. Ed. Cess Rs. 35,318/-) against fifteen invoices issued by one of their own unit namely M/s. S. Pal Enterprises (Pvt.) Ltd., 378-379, Phase-IV, Udyog Vihar, Gurgaon (as detailed in Annexure-A to the show cause notice). It was further gathered by the officers that their Gurgaon unit was also engaged in the manufacture of similar goods and was holding Central Excise Registration No. AAECS1246FXM001 at Gurgaon which they had surrendered in the month of June, 2007.;