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TMI Blog2014 (11) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... 18,346/- which was not contested before Original adjudicating authority, a penalty of Rs. 18,000/- was confirmed. 2. Shri Rahul Aggarwal, CA appeared on behalf of the appellants. He explained that basically two issues are involved in appeal under consideration. One relates to short payment of service tax and other to availment of Cenvat Credit based on allegedly invalid invoices. Penalties of equal amounts have also been imposed and interest on the short paid service tax and inadmissible Cenvat Credit have also been demanded. SCN dated 13.04.2006 was issued to the appellants for several irregularities in their ST-3 return for the period October 2005 to December 2005. 3. Shri Aggarwal further explained that as far as short payment of Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Commissioner (Appeals) however allowed them credit for Rs. 22365/- and disallowed Rs. 60005/- on the grounds that the input service invoices did not contain the STC no of the service provider. Learned counsel informed that they have obtained the same now and requested that the denied credit be allowed to them. He also submitted that this was not at all any intentional mistake as they has actually received the input services and made payments for the same and that for the mistake of the service providers, they should not be penalized. Alternately he also pleaded for condonation of penalty under section 80 on the grounds that no malafides can be attributed as they had availed credit on the basis of invoices of input service providers and ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0005/- is to be denied to them along with imposition of penalty under section 76 and Rule 15(3) of CC Rules for the same. The short payments made by the assessee are not being contested by them. Short paid service tax Rs. 18346/- has already been deposited by the assessee and appropriated by Revenue. For other short payment of Rs. 22675/-, ld counsel intimated that the same has already also been deposited. However this is subject to verification by revenue. Revenue shall also check that appropriate interest has also been deposited. 10. As far as imposition of penalty under section 76 of the Act is concerned, I intend to agree with the submissions made by learned Counsel that no malafides could be attributed to the assessee as the amounts w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. The amount of Cenvat credit amounting to Rs. 60,005/- is, therefore, recoverable from the assessee along with interest. 12. As regards the imposition of penalty under section 76 of the Act is concerned, I find that the denial of the credit is on account of infirmities in the input invoices. I note that this is not the case of the Department that the input services have not been availed or payments not made for the same. In the circumstances, I find force in the plea made by Shri Rahul Aggarwal, CA for consideration of waiver of penalty and accordingly give benefit of section 80 of the Act and hold that no penalty under section 78 is imposable upon the assessee. I also note that this is not a case of short payment of Service Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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