Central Excise Appeal No. 161 of 2010 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Central Excise Appeal No. 161 of 2010 Date of decision: 28.10.2010 Commissioner of Central Excise, Dehli-III ...Appellant Versus M/s Perfetti Van Melle India Pvt. Ltd. ...Respondent CORAM: HON'BLE MR.JUSTICE ADARSH KUMAR GOEL HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. Kamal Sehgal, Advocate for the appellant. **** ADARSH KUMAR GOEL, J. 1. This appeal has been preferred by the Revenue under Section 35 G of the Central Excise Act, 1944 against the order dated 17.9.2009 Annexure P-3 passed by the Customs, Central Excise & Services Tax Appellate Tribunal, New Delhi (for short 'the Tribunal') by seeking to raise the following substantial question of law:- “i) Whether the Hon'ble CESTAT was justified in setting aside the penalty imposed under Rule 13 of the Cenvat Credit Rules, 2002 read with Section 11 AC of Central Excise Act, 1944, as the party deliberately availed and utilized inadmissible Cenvat Credit on tattoos by mis- declaring the same as 'packing material' to make the same to appear as packing material thus contravening the provisions of Rule 2(f) of Cenvat Credit Rules, 2001 Central Excise Appeal No. 161 of 2010 -2- *** and Rule 2(g) of Cenvat Credit Rules, 2002 and Rule 3 of Cenvat Credit Rules, 2001/2002? ii) Whether the Hon'ble CESTAT was justified in setting aside the amount of penalty whereas it the duty has been confirmed, on the ground that on the identical issue, Division Bench of the Tribunal has set aside the penalty? 2. The department issued show cause notice dated 24.3.2004 proposing to disallow Cenvat credit availed by the assessee and also proposing to impose penalty. The Adjudicating Authority raised demand of duty and also imposed penalty. On appeal, the Tribunal upheld the demand of duty but set aside penalty noticing that the assessee had not intentionally evaded duty. The Tribunal followed earlier order in the case of the assessee in similar circumstances against which appeal of the Revenue being CEA No.63 of 2009 was dismissed by this Court on April 30, 2010. 3. We have heard learned counsel for the appellant. 4. In view of the fact that appeal against identical order in the case of the assessee was dismissed by this Court, we are unable to hold that any substantial question of law arises for consideration of this Court. 5. Accordingly, the appeal is dismissed. (Adarsh Kumar Goel) Judge October 28, 2010 (Ajay Kumar Mittal) Pka Judge