9911796707
TMI Blog2009 (2) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 16-4-2007, on the grounds that the appellant availed Cenvat credit paid on input services and claimed abatement of 67 of gross value in terms of notification No. 15/2004-ST dated 10-9-2004 and notification No. 1/2006-S.T. dated 1-3-2006 simultaneously; that further the appellant had not paid Education Cess separately under accounting head meant for Education Cess; that the appellant further failed to file ST-3 returns before the due date; that in view of the above, the appellant was directed to show cause as to why service tax amount of Rs. 66,47,753/-, which was short paid during the period from April, 2005 to March, 2006, should not be demanded under Section 73 of the Finance Act, 1994 (hereinafter referred to as the Act) along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value; (iv) that the appellant availed 67% abatement in value and took credit of service tax simultaneously on account of unawareness of issue of fresh Notification No. 1/2006-S.T., dated 1-3-2006, however, on realization of the correct position, the amount of credit of Rs. 1,79,410/- along with interest of Rs. 14,501/- was paid back long before the issue of the SCNs and thus condition of the Notification No. 1/2006-S.T., dated 1-3-2006 is fulfilled; (v) that the fact of Cenvat credit paid back along with interest was intimated to the department vide letter dated 6-11-2006, which fact has not appeared in the SCN and hence on such reversal of Cenvat credit the appellant was entitled to avail exemption and claim 67% abatement in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation (A) Ltd. v. CCE, Chennai [2006 (3) S.T.R. 772]; (x) that the issue pertaining to non-levy of penalties in cases where duty has been paid before the issue of SCN has reached finality by the Apex Court confirming the decision in the case of Commissioner v. Rashtriya Ispat Nigam Ltd. [2004 (163) E.L.T. A53]; (xi) that interest is not demandable as the appellant has paid service tax along with interest long before the issue of the SCN. 3. Stay Order No. PII/PAP/17/2008 dated 20-10-2008 was issued staying the recovery till the decision of the main petition. 4. P.H. was held on 2-2-2009 at 10.30 AM. Shri N.T. Godse, Consultant appealed before me. None appeared from Department s side despite intimation. During the hearing, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case, the appellant was slapped with 2 SCNs, both dated 16-4-2007, demanding service tax amount of Rs. 66,47,753/- [Rs. 48,78,856/- + Rs. 17,68,897/-] along with interest and with proposal to impose penalty under Sections 76, 77 and 78 on the ground that the appellant availed abatement of 67% in value and Cenvat credit of service tax paid on input service simultaneously and in terms of Notification No. 15/2004 dated 10-9-2004, simultaneous availment of abatement of value and Cenvat credit was not allowed; that the appellant further failed to pay education cess under separate head meant for Education Cess; that the period covered in both the SCNs were from April 2005 to March, 2006. 5.1 The appellant claims that as per Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escinding the notification No. 15/2004 vide Notification No. 2/2006-S.T., dated 1-3-2006. During the hearing, the appellant has also shown me the returns covering the period from April 2005 to March 2006 and I have seen that the appellant availed only input service credit during the said period. During the period from April 2005 to February 2006, availment of Cenvat credit on input service is in order in view of the fact that the notification no. 15/2004 does not restrict the same. Only during the period of March 2006, when the Notification No. 1/2006-S.T., dated 1-3-2006 was in place, the appellant availed Cenvat credit of input service due to the unawareness of the notification issued by the Govt. of India. But, however, on realising the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating Authority will not only bring distrust and scare in the mind of the assessee (appellant) but also would bring bad name to the department in particular and the Government in general. Commissioner may take this issue very serious. 6. As regards the penalty, the appellant has loaded with a few case laws mentioned supra. According to the said case laws, once the wrong availment of credit was paid back before the issue of SCN, it is to be concluded that the appellant has not availed wrong credit and accordingly the other benefit (in this case, abatement of 67%) is rightly available to the appellant on that date. In the instant case also, the appellant has paid back the credit wrongly availed and accordingly the 67% abatement in valu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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