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TMI Blog2018 (9) TMI 1725X X X X Extracts X X X X X X X X Extracts X X X X ..... CENVAT credit to the extent of Rs. 1,13,41,155/- has been irregularly availed and utilized by the appellant and demanded the same along with interest under Rule 14 of CENVAT Credit Rules read with Section 11A of the Central Excise Act, 1944 and also demanded interest of Rs. 76,549/- for the delay in payment of service tax for the month of March 2005 under Section 75 of the Finance Act, 1994. But dropped the penalties under Section 76, 77 and 78 of the Finance Act; but warned the assessee to be very careful in future. 1.2. Appellant has also filed a miscellaneous application for admission of additional grounds. After hearing both sides, we allow the miscellaneous application. Additional grounds are taken on record for consideration along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly they furnished all details after collecting information from various branches. After considering the submissions of the appellant, the impugned order was passed by the Commissioner allowing part of the CENVAT credit and disallowing balance of the credit. However Commissioner found that Bank acted bona fide since it was first year of Service Tax implementation and therefore he took a lenient view of not imposing penalties by invoking Section 80 of the Finance Act, 1994. 3. Heard both sides and perused records. 4.1. Learned consultant for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the show-cause notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017(4) TMI 896 - CESTAT Hyderabad] 4.2. He further submitted that appellant is a Government of India enterprise and therefore the allegation of suppression cannot be alleged against them. For this submission, he relied upon the following decisions:- i. Rajasthan Renewable Energy Corporation Ltd. [2016(12) TMI 342- CESTAT-New Delhi] ii. Quality Council of India [2016(3) TMI 404 - CESTAT - New Delhi] iii. BSNL [2017(11) TMI 213 - CESTAT Bangalore] iv. Bank of India [2017(4) TMI 896 - CESTAT Hyderabad] 5. On the other hand, the learned AR defended the impugned order and submitted that the appellant have wrongly availed the CENVAT credit on various input services which they were not entitled to. He further submitted that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppression cannot be made in view of the decisions cited supra. Further we find that in the case of Vulcan Industrial Engg. Co. P. Ltd., the Tribunal has held as under:- 2. A reading of the above paragraph makes it clear that the appellate authority's observations in the decision, on confirmation of demand and on penalty, are self contradictory. Once the appellate authority comes to a finding that there was no intention to evade payment of duty before clearing the goods, inasmuch as the clarification was sought by the assessee from the Assistant Commissioner, the same criteria would apply for not invoking the larger period of limitation. As such, we set aside the confirmation of demand on the point of limitation itself and allow the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed period of 5 years for fraud, wilful mistake, suppression of facts or contravention of provisions of the Act, with intent to evade payment of duty. As such, it is clear that provision of Section 73 is invokable when there is no reasonable cause on the part of the assessee not to pay the duty inasmuch all the circumstances mentioned in the said proviso relate to mala fide intention. As such, it can be reasonably concluded that proviso to Section 73 and Section 80, if interpreted in a harmonious manner lead to only one fact that is absence of mala fide and presence of bona fide. 8. if the Joint Commissioner himself has held the applicability of Section 80 to the facts of the present case, the said facts leads to only one situation i.e. pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri. Del.)], it was observed that inasmuch as the impugned order hold sufficient cause for invocation of Section 80 of the Finance Act, for waiver of penalty, extended time limit is not invocable. 7. Show cause notice has been issued invoking the extended period of limitation alleging suppression of facts with intent to evade payment of duty. Therefore, as the Commissioner(Appeals) has recorded his finding that there is no intention on the part of appellant to evade payment of service tax, the demand raised invoking the extended period also becomes unsustainable. In CCE Vs. Padma Cable TV [2009-TIOL-2106-CESTAT-Mad], it was held that if the failure to pay service tax occasioned by ignorance of law, the benefit of Section 80 can be invoke ..... X X X X Extracts X X X X X X X X Extracts X X X X
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