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TMI Blog2018 (5) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... ich no penalty is exigible. Appeal disposed off. - E/42342/2017 - Final Order No. 41484/2018 - Dated:- 15-5-2018 - Hon ble P. Dinesha, Member ( Judicial ) Ms. Cynduja Crishnan, Adv. for the appellant Shri R. Subramaniyam, AC (AR) for the respondent ORDER The brief facts involved are that the assessee-appellant is a holder of Central Excise Registration No. AAACM5369FXM001 and engaged in the manufacturing activity of TMT Bars and Rods. The appellant had availed Cenvat credit on the input services; the services used for repair and maintenance of the factory premises. The dispute relates to the period February 2014 to April 2014. The Revenue alleging that the services provided were in the nature of construction servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore issuance of SCN; that they had submitted their returns and furnished all the information as and when called upon by the department; that it was wrong to say that the availment of credit came to the light when their records were duly verified by the department; that they have regularly filed returns in time; that when all the facts were within the knowledge of the Revenue, there is no merit in imposing interest and penalty; that but for a false allegation of suppression was absolutely no evidence in support with the department nor have they shown any positive act of suppression by the appellant, etc. 3. The adjudicating authority passing Order-in-Original was of the view that the appellants had taken Cenvat credit wrongly on ineligibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions in the case of CCE Vs. Kisan Mouldings Ltd.-2010 (260) ELT 167 (SC) to the effect that no penalty is imposable for a bonafide mistake in availing Cenvat credit. Thus, the adjudicating authority concluded that the assessee does not deserve to be penalized. The adjudicating authority, therefore, took a lenient view and desisted from imposing any penalty on the assessee after following the decisions of the Hon ble Supreme Court in the cases of CCE Vs. Gujarat Narmada Fertilizers Co. Ltd 2009 (240) ELT 661 (SC) and Uniflex Cables Ltd. Vs. CCE, Surat 2011 (271) ELT 161 (SC). 4. The Revenue feeling aggrieved by the dropping of the levy of penalty by the adjudicating authority, filed an appeal before the Commissioner (Appeals-II), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th regard to the definition of input service pertains to modernization, renovation or repairs of the factory qualifying as input service under the inclusive clause of Rule 2 (l) of CCR, 2004 and a categorical finding by the Asst. Commissioner that in the present case the assessee had availed the construction services of repair of the factory which was based on input service invoices. Thus, it is a clear case where two views are possible as observed by the ld. Asst. Commissioner. Unfortunately, the ld. Commissioner (Appeals) has not shaken these factual findings arrived at by the adjudicating authority. 8. The ld. Commissioner (Appeals) has in his order not disputed the bonafides of the appellant in wrongful availment of Cenvat credit no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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