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TMI Blog2015 (11) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... sue has never been raised. Apparently the appellant wanted to close the issue and do not enter into a litigation. Nevertheless litigation has been commenced by the Revenue and even while doing so in the case of a demand, the cut and paste procedure has been adopted resulting in a wrong name mentioned in the show-cause notice. - even the statutory provisions have not been considered and decisions cited have not been discussed. - this is a fit case for waiver of penalty under Section 80 of Finance Act 1994 and accordingly penalty imposed on the appellant are set aside. - Decided in favour of assessee. - ST/2430/2010-SM - Final Order No. 20839 / 2015 - Dated:- 20-3-2015 - Mr. B.S.V. Murthy, Technical Member For the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant accepted the observation and reversed it with interest. Learned counsel submitted that this was a mistake on the part of the appellant and they had not noticed that they were simply taking credit without segregating the same properly. d) An amount of ₹ 1,73,442/- (Rupees One Lakh Seventy Three Thousand Four Hundred and Forty Two only) was agreed to have been wrongly taken since during the relevant time output service was not taxable and the services could be identified as the one used for such service. The learned counsel submitted that this was a mistake on the part of the appellant. Total amount came to ₹ 27,67,720/- (Rupees Twenty Seven Lakhs Sixty Seven Thousand Seven Hundred and Twenty only) which was prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that in paragraph 7(iv), the show-cause notice proposes why penalty should not be imposed on the amount of ₹ 27,67,720/- under Rule 15(4) of Cenvat Credit Rules 2004 read with Section 78 of the Finance Act 1994. 3.3. The appellants had contended before the original authority and had cited several decisions to support the submission that since they have paid the eligible credit with interest before issue of show-cause notice, the penalty under Section 78 is not leviable on them. Paragraph 23 takes note of this submission and decisions relied upon by the appellant in the order-in-original. However in the very next paragraph the original authority has relied upon the Boards Circular which is purely relevant to interest alone. For b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit has been reversed with interest no penalty is leviable. He is only talking about interest as can be seen by the paragraph. Subsequently he reproduced the proviso to Rule 15(1) and says that he proceeds to levy penalty under Section 78 of the Act. However the penalty was imposed under Rule 15(4) of Cenvat Credit Rules not under Rule 15(1). Rule 15(1) proposes no mandatory penalty whereas Rule 15(4) of Cenvat Credit Rules 2004 proposes mandatory penalty. He is citing Rule 15(1) but imposing penalty under Rule 15(4) read with Section 78 of Finance Act 1994. In the whole paragraph there is no observation as to the relevance of the decisions cited, whether the decisions are considered or not and why the penalty is being proposed and what e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lower authority and hold that the appellants are liable for penalty under Rule 15(4) of Cenvat Credit Rules, 2004, read with Section 78 of the Finance of Act, 1944 as they also contravened the provisions of the Finance Act, 1994 and Rules made there under by availing cenvat credit irregularly. In this regard, it would be pertinent to refer to the findings of the Hon ble Tribunal in the case of CCE, Ludhiana Vs. Star Cargo Consultant [2009 (15) STR 43 (Tri.-Del.)], the relevant portion of which is as follows: I agree that waiver of penalty cannot be granted just because the service tax had been paid prior to the issue of show cause notice. But if the non-payment of service tax was due to some bona fide reason on the part of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how-cause notice. Further even the statutory provisions have not been considered and decisions cited have not been discussed. Even then even before me the submission was only a request to invoke Section 80 of Finance Act 1994 and waiver of penalty. The observations made regarding statutory provisions have arisen as a result of the reading of the documents during the course of hearing and not because the appellants wanted or raised deficiencies in the orders of lower authorities. 5. In the above circumstances, I consider that this is a fit case for waiver of penalty under Section 80 of Finance Act 1994 and accordingly penalty imposed on the appellant are set aside. The demands for cenvat credit and interest thereon have not been contested ..... X X X X Extracts X X X X X X X X Extracts X X X X
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