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TMI Blog2016 (5) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... AL MEMBER For the Appellant : Shri K.P.Muralidharan, AC (AR) For the Respondent : Shri Rajaram Ramanan, Consultant ORDER Before going into the merits of the case, although the Order-in-Appeal is common, the issues involved are different, the case is disposed by separate orders. 2. The brief facts of the case are that M/s. Cognizant Technology Solutions (hereinafter referred to as Respondent ) was subject to audit by the Service Tax authorities. During the course of audit, it was noticed by the Revenue that excess CENVAT Credit was availed by the Respondent to the tune of ₹ 13,69,210/-. The Respondent had agreed to the aforesaid observation of the audit department and has reversed the CENVAT Credit availed along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case merits for waiver of penalty under Section 80 of the Finance Act, 1994. The Commissioner (Appeals) had placed reliance on the ruling of the Ahemdabad Tribunal in the case of Atwood Oceanics Pacific Ltd. Vs, CST Ahemdabad - 2013 (32) STR 756 (Tri.-Ahmd.) for waiver of penalty under Section 80 of the Finance Act, 1994. Being aggrieved by the order passed by the Commissioner (Appeals), the appellant-Revenue has preferred this appeal before Tribunal. 4. In the grounds of appeal, the Revenue has contended that the respondent-assessee had availed wrong CENVAT Credit on many occasions and that was not disclosed to the department either in their ST-3 returns or in any other form and hence suppression has been clearly established; that acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al has been preferred against the said ruling would not be a ground for appeal. He placed reliance on the ruling of the Supreme Court in the case of Union Of India Vs Kamlakshi Finance Corporation Ltd. - 1991 (55) ELT 433 (SC) to support his argument. He also submitted that the Respondent is a large tax payer and the quantum of data handled by the Respondent was voluminous i.e. the mistake had happened in 132 occasions out of 9400 entries (approx.). He also placed reliance on the ruling of Canara Bank Vs Commissioner of Service Tax Bangalore 2016 (3) TMI 712 - CESTAT BANGALORE, wherein it was held that no penalty is to be levied for unintentional mis-happenings/mistakes that take place at the time of availment of CENVAT Credit. 6.1 As re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of penalty of INR 14,67,499/- (Rupees Fourteen Lakhs Sixty Seven Thousand Four Hundred and Ninety Nine only) imposed under Rule 15(1) of Cenvat Credit Rules for the above wrongly taken cenvat credit, the facts indicate that for taking the cenvat credit there was no intention of the appellant to take it when it was not due. In fact it had become due to them, when they had paid the service tax in the month of November 2009; the said lapse has been explained by the appellant saying that the said services were received from abroad in their Mumbai office and statements using such services come to their centralized office in Bangalore. Sometimes such unintentional mis-happenings/mistakes do take place for which the appellant is not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. Those in charge of the affairs of the Company in failing to register the Company as a dealer acted in the honest and genuine belief that the Company was not a dealer. Granting that they erred, no case for imposing penalty was made out. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principle laid down by the Honble Supreme Court in the case of UOI Vs Kamlakshi Finance Corporation Ltd. 1991 (55) ELT 433 (SC), wherein it was held that mere fact of filing an appeal can furnish no ground for not following a judicial pronouncement unless its operation has been suspended by a competent Court. Based on the above, I am of the view that there is no suppression in the present case, as contended by the Appellant, as the Respondent has paid the service tax and interest by showing their Bonafides. The Appellant has relied on the ruling of the Madras High Court in the case of Dhandayuthapani Canteen (supra) wherein it was held that penalty is payable even though service tax and interest has been paid prior to the issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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