2019 (2) TMI 24

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..... ng with interest before the issuance of SCN - Further, except mere allegation of suppression, the Department did not bring any material on record to prove that there was suppression or concealment of facts to evade payment of tax. The imposition of penalty under Rule 15 (3) of CCR, 2004 is not justified and bad in law in view - appeal allowed - decided in favor of appellant.
MR. S.S GARG, JUDICIAL MEMBER Ms. Neethu James, Advocate For the Appellant Mr. Madhup Sharan, Asst. Commissioner, AR For the Respondent ORDER Per : S.S GARG The present appeal is directed against the impugned order dated 18.01.2018 passed by the Commissioner (A) whereby he has rejected the appeal of the appellant. 2. Briefly the facts of the present case ar .....

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..... st was paid prior to the issuance of SCN. She further submitted that pursuant to the objection raised by the audit department and prior to the issue of SCN, appellants have reversed/paid the entire inadmissible credit along with interest. She further submitted that the appellant's case is covered under Section 73(3) of the Finance Act and therefore, no SCN should have been issued in the present case and consequentially no penalty is imposable in the present case. For this submission, she relied upon the following cases: (i) CCE & ST, LTU Bangalore Vs. M/s. Adeeco Flexione Workforce Solution Ltd., 2012 (26) STR 3 (Kar.). (ii) CCE Vs. Gaurav Mercantiles Ltd., 2005 (190) ELT 11 (Bom.). (iii) CCE Vs. Hodek Vibration Technologies P. Ltd., 2 .....

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..... tax is paid along with interest before issuance of SCN, the SCN shall not be issued. In this case, I find that as soon as the audit pointed out the wrong availment of credit, the appellant reversed the same along with interest before the issuance of SCN. Further, I find that except mere allegation of suppression, the Department did not bring any material on record to prove that there was suppression or concealment of facts to evade payment of tax. Consequently, in my opinion, the imposition of penalty under Rule 15 (3) of CCR, 2004 is not justified and bad in law in view of the various decisions cited supra. Moreover, in the impugned order, the Ld. Commissioner (A) has not recorded any finding on suppression of fact by the appellant with an .....

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