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2016 (2) TMI 592 - AT - Central ExciseDenial of Cenvat Credit of service tax - Recovery of duty under Section 11A(1)- violation of Rule 3 of CENVAT Credit Rules, 2004 - invoice raised in respect of Calico land which was not incorporated in the manufacturing premises and in respect of certain invoice credit was sought to be denied on the ground that service tax registration no. of supplier were not mentioned in their invoices - Held that:- It is a fact that the land belonging to Calico was purchased by the appellant in an auction got conducted by the Gujarat High Court and appellant took possession of the same in the year 2005. They applied for inclusion of Calico land in their RC vide their letter dated 20.12.2007 and the same was granted by the excise authorities with effect from 16.05.2008. It is also a fact that the wall around the Calico land was got constructed by the appellant; purchase order as well as invoice are also in the name of HPCL, i.e. the appellant. In view of this mere non-inclusion of Calico land in the excise registration at the time when the services were availed is only a procedural lapse which was rectified subsequently by the service tax authorities w.e.f 16.05.2008 by including the said land in the registration certificate of the appellant. Thus in considered view, input service credit cannot be denied on this mere procedural lapse to the appellant It is pertinent to note that in respect of few invoices issued by the service providers, the appellant had admitted the wrong availment of Cenvat Credit of ₹ 72,675/- and have already reversed the same along with interest. Now coming to the alleged total demand of ₹ 5,55,112/-, the appellant are entitled to Cenvat Credit of ₹ 3,73,507/- and ₹ 1,08,930/- totalling ₹ 4,82,437/- and the remaining amount of ₹ 72,675/- has already been reversed by the appellant along with interest. Admittedly, appellant had wrongly availed Cenvat Credit of ₹ 72,675/-, therefore, the appellant is liable to penalty of equal amount under Rule 15(3) of CENVAT Credit Rules, 2004 read with Rule 25 of Central Excise Rules, 2002. In view of the foregoing, the appeal of the appellant is partly allowed to the extent that they are entitled to Cenvat Credit of ₹ 4,82,437/- but they are liable to penalty of equal amount of the credit wrongly availed to the tune of ₹ 72,675/-.
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