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2018 (9) TMI 392 - AT - Service TaxCENVAT Credit availed by mistake - revised return filed on being pointed out, rectifying the mistake - appellant also paid the entire amount of differential duty in January 2007 along with interest - Rule 7B of the Service Tax Rule, 1994 - Held that:- No CENVAT Credit was availed in the month of October 2006, November 2006, December 2006, February 2007 and March 2007. Rule 7B of the Service Tax Rule, 1994 is designed to take care of such contingencies, the fact that the appellant were not availing Cenvat Credit is clear from the fact that no credit was availed in five month out of six covered in the Service Tax return - Since, appellant have filed revised return on 08.05.2007 that is within the period described under Rule 7B, it supersedes the original return filed by them. In these circumstances, no Cognizance needs to be taken of the first return filed by the appellant wherein, the Cenvat Credit was availed and utilised - appeal of M/s. Amardeep Construction is allowed. Penalty u/s 78 of FA - Held that:- Since, demand and duty does not survive, the imposition of penalty cannot also survive - penalty set aside. Appeal allowed - decided in favor of assessee.
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