9911796707
TMI Blog2018 (5) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The Revenue alleging that the services provided were in the nature of construction service, and that the same was not used by the appellant directly or in relation to the manufacture of the final products and clearance of the final products up to the place of removal, issued a SCN dated 14.06.2016. It was further alleged by the Revenue that the appellant had not produced any documents relating to the availment of Cenvat credit and that no valid reasons were furnished to the effect that the said credit was available under the Rules. Accordingly, it was proposed in the SCN as to why: i) Cenvat credit of Rs. 1,59,433/- for the period from February 2014 to April 2014 should not be disallowed and demanded from them under Section 11 A (4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew that the appellants had taken Cenvat credit wrongly on ineligible service which was liable to be recovered along with interest. The adjudicating authority further observed that the appellants had reversed the Cenvat credit immediately after it was brought to their notice as to the wrong availment of Cenvat credit which fact, according to the adjudicating authority, was to prove the bonafide intentions of the appellants. The adjudicating authority was therefore of the opinion that as per the definition of 'input service' at the material point of time, the services pertaining to 'modernization, renovation or repairs of a factory' qualified as input services under the inclusive clause of the definition under Rule 2 (l) of the CCR, 2004. Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority, filed an appeal before the Commissioner (Appeals-II), Chennai. The Commissioner (Appeals) vide the impugned order dated 30.06.2017 has allowed the appeal of the Revenue by setting aside the order passed by the adjudicating authority. It is the view of the ld. Commissioner (Appeals) that the assessee had not disclosed the fact of availing Cenvat credit on service tax paid on construction services provided to the department. Further, the ld. Commissioner (Appeals) as also held that the imposition of penalty under Section 11 AC is automatic and that the Asst. Commissioner had no description, as per the decisions of the Hon'ble Supreme Court in Dharmendra Textile Mills - 2008 (231) ELT 3 (SC) and Rajasthan Spinning & Weaving Mills - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant in wrongful availment of Cenvat credit nor has he suspected the act of reversal of such credit availed before issuance of SCN. It is therefore a clear case of bonafide mistake in availing Cenvat credit for which no penalty is exigible. The Apex Court in its decisions relied on by the appellant in the cases of CCE, Trichy vs. Grasim Industries Ltd. - 2005 (183) ELT 123 (SC) and Maruti Suzuki Vs. CCE, New Delhi - 2009 (240) ELT 641 (SC), CCE Vs. Kisan Mouldings Ltd.-2010 (260) ELT 167 (SC) had repeatedly held that 'no penalty is imposable for a bonafide mistake in availing Cenvat credit. I am therefore of the considered view that the ld. Commissioner (Appeals) is not justified in levying penalty. I therefore restore the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
