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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 ..... f various services as works contract services, cleaning services, Manpower supply services on the basis of invoices issued by their sub- contractors/suppliers. On further scrutiny, it was found that during the year 2013-14, while making payment to the various subcontractors the appellant had retained flat 5% of the total value of the invoices raised by the sub-contractors and the payment of such 5% retention amount was not made to them even after 3 months from the date of issue of invoices. As per department, the proviso to Rule 4(7) of Cenvat Credit Rules, 2004 prescribes that, if the payment of the value of input service and service tax paid or payable as indicated in the invoice, is not made within three months of the date of invoice, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amby Valley Ltd. in which the Tribunal vide Final Order No. A/ 87038/2018 dated 2.8.2018 has held that penalty under section 78 ibid is not imposable where the appellant although had availed inadmissible credit but did not utilise the same and there was no revenue loss to the government and therefore the interest was dropped and in the same way the appellant is not liable for any penalty also. He further submits that there was no malafide intention on the part of the Appellant and that the appellants were under a bonafide belief that cenvat credit was admissible to the appellant. According to him the situation is revenue neutral since the credit proposed to be recovered will be admissible once the retention money has been paid to the servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suppression of facts on the part of the appellant with intention to evade payment of duty. The decision of this Tribunal in the matter of Appellant's sister unit i.e. M/s. Aamby Valley Ltd. (supra) which is on somewhat similar facts, this Tribunal while deciding the Appeal against the Revenue, held as under:- "3. It transpires from the available records that the appellant had sufficient balance in its Cenvat account during the period between taking of irregular Cenvat Credit and subsequent reversal thereof. Thus, it cannot be said that the appellant had taken irregular Cenvat Credit by reason of fraud, collusion, wilful mis-statement etc. with intent to defraud the Government's revenue. Hence, I am of the view that the ingredients of Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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