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2019 (2) TMI 770 - AT - Service TaxConstruction services - construction of residential and commercial complex service - period 2004-05 to 2007-08 - benefit of N/N. 1/2006-ST dated 1.3.2006 - cenvat credit as well as abatement, which they have reversed on 14.12.2009 after being pointed out by the department during the course of the audit - Held that - The learned Commissioner (Appeals) taking note of the fact that initially, the contravention was under bona fide mistake and on reversal of the cenvat credit amount, the audit para being closed and subsequent payment of service tax along with interest was not in contravention of the provisions, but to avoid litigation, set aside the penalty invoking Section 80 of the Finance Act, 1994. The only ground on which the Revenue is in appeal is that the respondent is a repeated offender. However, analysis of the facts and evidences on record discloses otherwise - appeal dismissed - decided against Revenue.
Issues:
- Appeal against order-in-appeal No. 90/GH/2017-18/Raigad dated 16.3.2018 passed by Commissioner of CGST & Central Excise (Appeals), Mumbai. - Allegation of wrongly availing abatement under Notification No.1/2006-ST dated 1.3.2006 and simultaneous cenvat credit for the period 2004-05 to 2007-08. - Payment of abatement amount and interest for subsequent period 2009-10 to 2010-11 after audit objection. - Imposition of penalty under Section 76 and Section 78 of the Finance Act, 1994. Analysis: 1. The appeal was filed by the Revenue against the order-in-appeal passed by the Commissioner of CGST & Central Excise (Appeals), Mumbai. The respondent was engaged in providing taxable services related to the construction of residential and commercial complexes. They had availed cenvat credit on inputs during the period 2004-05 to 2007-08 and claimed the benefit of Notification No.1/2006-ST dated 1.3.2006. An audit in 2009 revealed discrepancies, leading to the reversal of amounts and closure of the audit para. Subsequently, another audit in 2010 highlighted issues related to availing abatement under the same notification. The respondent paid the abatement amount and interest to avoid litigation. A show cause notice was issued in 2013, resulting in the imposition of penalties under Sections 76 and 78 of the Finance Act, 1994. 2. The Revenue contended that the respondent repeatedly violated the conditions of Notification No.1/2006-ST by wrongly availing abatement and cenvat credit simultaneously. The Commissioner (Appeals) was criticized for not acknowledging the lack of bona fide mistake on the respondent's part, justifying the penalties imposed. On the other hand, the respondent argued that the initial contravention was due to a bona fide mistake, which was rectified in 2009. They maintained that for the subsequent period, they did not avail both benefits simultaneously and paid the service tax and interest post-audit objection in 2012 to prevent legal disputes. 3. After hearing both sides and reviewing the submissions and records, the Member (Judicial) analyzed the case. The respondent had explained the circumstances leading to the initial contravention and subsequent corrective actions taken. The audit report supported the respondent's claims. It was noted that the penalties were dropped by the Commissioner (Appeals) considering the facts presented. The Member found merit in the respondent's arguments, emphasizing that the penalties were avoided to prevent litigation rather than as a repeated offense. The Revenue's appeal was dismissed as the evidence did not support the allegation of repeated offense, upholding the decision of the Commissioner (Appeals) to set aside the penalties under Section 80 of the Finance Act, 1994. 4. In conclusion, the judgment found no discrepancies in the impugned order, leading to the dismissal of the Revenue's appeal due to lack of merit. The decision was pronounced in court, affirming the outcome of the case.
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