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TMI Blog2019 (6) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... credited. It is settled by catena of decisions that wrong availment of cenvat credit but non-utilising the same do not lead to any consequence. In the present case, the Revenue has failed to brought on record any evidence to prove fraud or collusion or wilful suppression on the part of the Appellant and the Appellant by its conduct has proved that that there was no malafide intention on its part and it was only a bonafide error on the part of the Appellant, which was rectified immediately on pointing out by the audit party and therefore in these circumstances no penalty is imposable on the Appellant. Appeal allowed - decided in favor of appellant. - ST Appeal No. 88279 of 2018 - A/86035/2019 - Dated:- 29-5-2019 - MR. AJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t after calculating the Cenvat credit involved in those invoices, reversed the amount of ₹ 17,32,512/- on 28.2.2015 vide Cenvat Credit Entry No.4855. Thereafter after almost eight months, a show cause notice dated 16.10.2015 was issued to the Appellant for adjusting and appropriating the reversed Cenvat credit amount of ₹ 17,32,5112/- towards their service tax liability alongwith interest and penalty. The Adjudicating Authority vide Oder-in-Original dated 15.12.2016 confirmed the demand of service tax, dropped the interest liability and imposed the penalties of ₹ 5,000/-, ₹ 10,000/- and ₹ 17,32,512/- under Rule 15(A) of CCR, 2004, Section 77(2) ibid and Rule 15(3) of CCR, 20004 r/w Section 78(1) ibid respective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Authorised Representative on behalf of Revenue reiterated the findings recorded in the impugned order and prayed for dismissal of the Appeal. 3. I have heard learned Chartered Accountant for the Appellant and learned Authorised Representative for the Revenue and perused the Appeal Memo with annexures. The issue to be decided is whether the Appellant is liable for penalty for contravention of provisions of CCR, when admittedly the Cenvat Credit is reversed before the issuance of show cause notice? Section 78 of the Act deals with penalty for failure to pay service tax for reasons of fraud, etc. Section 78(1) of the Act provides that where any service tax has not been levied or paid, or has been short-levied or short-pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the instant matter since the appellant had sufficient balance in cenvat account therefore it cannot be said that they had utilised the same. It is not disputed that after it was pointed out by the audit party the same was reversed by the appellant immediately without even waiting for the show casue notice, therefore it cannot be said that there was any intention on the part of the appellant to evade payment of tax or that they had utilised the amount credited. It is settled by catena of decisions that wrong availment of cenvat credit but non-utilising the same do not lead to any consequence. The Hon ble High Court of Karnataka at Bangaluru in the matter of CCE, Bangalore vs. Flextronics Technologies (India) Pvt. Ltd.; 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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