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2016 (12) TMI 327 - AT - Central ExciseDemand - CENVAT credit - Engineering Consulting services - suppression of facts - Held that: - It is clear from the facts in the first round of litigation both the authorities below had held the issue in favour of appellant holding that appellant is eligible for credit. the judgment relied by appellant also, it was held that credit cannot be denied and that, at the most, it would be procedural lapse. Further there is no discrepancy with regard to the amount of credit availed or the service tax paid on such services. The error if any, is that instead of the appellant's second unit availing/utilizating the credit, the appellant has availed and utilized the credit. The submission made by the learned counsel for the appellant is that the situation is one revenue neutrality as the credit could have been availed by the second unit. Although Department contends that the contravention has come to light only on audit of records, it has to be again stated that on the issue whether appellant is eligible for credit there are divergent views as in the first round of litigation both the authorities held that appellant is eligible for credit. Further as per the definition of input service, the manufacturer is eligible to take credit and not the factory. Therefore the error, if any, is only procedural lapse which cannot be concluded to be suppression or misrepresentation of facts with intent to evade payment of duty. In view thereof, I am of the view that there is no evidence to establish any positive act on the part of the appellant for suppression, fraud or misrepresentation of facts with intent to evade payment of duty. CENVAT credit allowed - appeal allowed - decided in favor of appellant.
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