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TMI Blog2010 (5) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... 76 is not correct - appeal filed by the appellant is allowed and the appeal filed by the department is dismissed - ST/281 and 303/2009-SM(BR) - 789-790/2010-SM(BR)(PB) - Dated:- 26-5-2010 - Shri Rakesh Kumar, Member (T) REPRESENTED BY : Shri S.K. Bhaskar, SDR, for the Appellant. S/Shri M.P. Singh and V.K. Singh, Advocates, for the Respondent. [Order (Oral)]. - The facts giving rise to these two appeals - first appeal by M/s. Era Constructions (I) Ltd. (hereinafter referred to as appellant) and second by Commissioner of Central Excise, Ludhiana (hereinafter referred to as respondent), are as under :- 1.1 The appellant provided the taxable services of industrial construction for which they have Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of inputs/capital goods or inputs services has been availed under Cenvat Credit Rules, 2004. Thus while during the period prior to 1-3-2006, the condition for availing this exemption was that no Cenvat credit on inputs capital goods had been taken, from 1-3-2006, the condition for availing this exemption became that no Cenvat credit in respect of inputs/capital goods or input service has been availed. The appellant during the month of March, 2006, while availing the benefit of Notification No. 1/2006-S.T. also took Service Tax credit amounting to Rs. 41,658/- and in the S.T. 3 return for the period ending 31-3-2006, availment of Service Tax credit amounting to Rs. 41,658/- had been declared. It appears that on scrutiny of Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard both sides. 2.1 Shri M.P. Singh, Advocate, learned Counsel for the appellant, pleaded that prior to 1-3-2006 for availing the exemption under Notification No. 15/2004-S.T., the only condition for this exemption was non-availment of Cenvat credit in respect of inputs/capital goods and by Notification No. 1/2006-S.T. dated 1-3-2006, for availing the same exemption, additional condition of non-availment of Service Tax Credit was also imposed, that the appellant, under the mistaken impression that new notification will be applicable from April, 2006, took credit of Rs. 41,081/- in respect of some inputs services during the month of March, 2006 and also availed the exemption under Notification No. 1/2006-S.T., though there was no mal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 78 are not correct and that there is no bar on the simultaneous penalty under Section 76 as well as under 78. He also pleaded that penalty under Section 76 would be attracted in every case where Service Tax payable is not paid by the due date and this is not case for invoking section 80. 3. I have carefully considered the submissions from both sides and perused the records. There is no dispute about the fact that availment of Service Tax credit as well as the benefit of exemption under notification No. 1/2006 S.T. had been declared in the S.T. 3 return in the six monthly return for period ending March, 2006 and only on scrutiny of this S.T. 3 return that the department had issued Show cause notice. In view of this, I do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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