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TMI Blog2019 (5) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... where there has been suppression/ mis-declaration etc. with an intention to evade tax. In the present facts, the show cause notice as well as the orders of the authorities under the Act have on facts held that there was suppression of facts on the part of the Appellant to evade payment of tax - the issuing of show cause-cum-demand notice and imposition of penalty is justified and in accordance with the clear mandate of the law. Appeal dismissed - decided against appellant. - CENTRAL EXCISE APPEAL NO. 27 OF 2019 - - - Dated:- 26-4-2019 - A.S. OKA M.S. SANKLECHA, JJ. Ms. Padmavati Patil and Mr. Kiran Chavan, for the Appellant. Mr. Vijay Kantharia with Mr. Sham Walve and Mr. J. B. Mishra, for the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid the entire amount of Cenvat of ₹ 31.77 lakhs along with interest of ₹ 9.47 lakhs to the Revenue on 6th November, 2012. However, on 26th September, 2014, the Joint Commissioner of Central Excise issued a show cause notice seeking to impose penalty under Section 78 of Finance Act, 1994 read with Rule 15 (3) of the Cenvat Credit Rules, 2004. The Respondent contested the notice by pointing out that the taking of credit on software which were not used as inputs was a mistake on its part. Thus, no penalty be imposed. This particularly so, because the entire credit of ₹ 31.77 lakhs taken along with interest thereon was paid to the Revenue even before the issue of a show cause-cum-demand notice. 5. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se penalty under Section 78 of the Act can arise in the absence of any jurisdiction to issue notice seeking to recover the Cenvat Credit incorrectly taken and utilized. 8. We note that Section 73(3) of the Finance Act, 1994, provides that where a party pays its tax and the interest thereon before the issue of show cause notice, then there is no occasion for the Revenue to issue a show cause-cum-demand notice can arise. However, by virtue of Section 73(4) of the Finance Act, 1994, which begins with the non- obstance clause clearly provides that Section 73(3) of the Finance Act,1994 would not be applicable to an assessee where there has been suppression/ mis-declaration etc. with an intention to evade tax. In the present facts, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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