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TMI Blog2018 (7) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... it. This observation, clearly, not supported by any evidence. It is therefore a clear case of bonafide mistake in availing Cenvat credit for which no penalty is exigible. Decided in favor of assessee. - E/42342/2017 - 41484/2018 - Dated:- 18-5-2018 - 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 relate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out by the audit, before utilization. It was also pleaded inter-alia by the assessee that the credit was reversed before 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 adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee had paid the duty involved, etc. Furthermore, the adjudicating authority also drew support on the Hon ble Supreme Court decisions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly, not supported by any evidence. As observed by me from the factual findings of the Asst. Commissioner at page-10 of his order that with 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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