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2014 (12) TMI 289 - AT - Service TaxCENVAT Credit - Business Auxiliary Services - Capital goods - Held that:- Entire goods covered under the invoices have been issued to Head Office have been received in Unit-II. There is also no dispute that each invoice bears an endorsement, that the packed machines were sent to Unit -II. Thus, the conditions prescribed for availment of Cenvat Credit by a factory on the basis of the invoices issued to the Head Office as mentioned in the Board's Circular No.211/45/96/CX dated 14.5.96 are satisfied. The Cenvat Credit demand of ₹ 2,41,060/- along with interest and penalty of equal amount imposed on the appellant is, therefore, not sustainable and is liable to be set aside. Levy of penalty - Held that:- appellant themselves had presented their records to the Audit Officers in course of which the above mentioned short-payment or non-payment of duty/service tax had been detected, it cannot be said that the above mentioned short-payment/non-payment of duty/service tax was deliberate. In fact the disputed amounts had been paid before the issue of SCN and therefore the same have to be treated as the payment of central excise duty/service tax made under Section 11 A(2B) of the Central Excise Act, 1944/section 73(3) of the Finance Act, 1994 and since the entire disputed amount of duty/service tax has been paid along with interest, even the show cause notice should not have been issued. In view of these circumstances, I hold that imposition of penalty on the appellant was not called for and is liable to be set aside. duty /Cenvat credit/Service Tax demands along with interest are upheld, imposition of penalty is set aside - Decided in favour of assessee.
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