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TMI Blog2018 (5) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... be covered under cargo handling services for which tax liability was discharged - provisions of Section 80 can be invoked in this case and the penalty can be set aside. Excess utilization of CENVAT credit - Held that: - Utilisation of CENVAT credit in 'excess of 20% could be a procedural infraction but definitely not an evasion of tax which is the requirement for imposition of equivalent amount of penalty. If the entire amount of the differential utilisation of CENVAT credit along with interest stands deposited before the adjudication proceedings, the provisions of Section 80 needs to be invoked in this case. Penalties set aside - appeal allowed - decided in favor of appellant. - ST/948/2009-SM, ST/953/2009-SM - A/30444-30445/2018 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters are listed today. 5. The relevant facts that arise for consideration in brief are appellants were rendering services of cargo handling services for import and export of goods. They were availing CENVAT credit of input services. It was noticed by the authorities that while availing common input services appellant should have maintained separate accounts for common input services used for taxable and non-taxable Services, as revenue was of the view that services rendered by the appellant for export cargo is non-taxable under cargo handling services. It was also noticed that they had utilised 100% CENVAT credit for discharging the service tax liability and however during the period in question i.e. October 2005 to March 2008, an assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s utilised CENVAT credit by cash along with interest. Hence there is no reason to impose any penalty under Section 78 of the Finance Act 1994. 7. Learned A.R. submits that once it is an admitted fact that storage and warehousing services are taxable, mandatory penalty arises as they have not discharged the tax liability in time and was noticed during the visit of the officers. It is his submission that in respect of cargo handling services also utilisation of CENVAT credit in excess of 20% of the credit is in itself incorrect and hence the imposition of penalty under Section 78 should be equivalent to the amount of tax liability in both the issues. It is his submission that Revenue is seeking in their appeal, equivalent amount of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty imposed. It is noticed from the records that appellant on being pointed out has discharged the service tax liability as worked out by the Revenue and had paid the differential amount of ₹ 29,295/- and interest was paid before the adjudication was taken up. In my view, the argument of the learned counsel needs to be accepted that there is no reason for them to not to pay the tax; also that they could have entertained a bonafide belief that the amount charged by them could be covered under cargo handling services for which tax liability was discharged. In view of this in my considered opinion, provisions of Section 80 can be invoked in this case and the penalty can be set aside. As regards excess utilisation of CENVAT credit duri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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