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2019 (2) TMI 22 - AT - Service TaxCENVAT Credit - input service - rent-a-cab service - period between April 2012 to September, 2015 - appellant has also not made pre-deposit - Section 35F of the Central Excise Act - Held that:- Referring to clarification on mandatory pre-deposit, while filing appeals, vide F. No. 15/CESTAT/General/2013- 14 dated 28.08.2014 containing instructions that mandatory deposit of duty confirmed can be made from CENVAT credit account, he has given his finding that appellant had failed to produce any evidence of reversal of the same amount of ₹ 5,78,923/- and failed to produce protest letter to substantiate the same. These findings appear contradictory to each other as reversal of CENVAT credit was affirmatively stated to have been made and evidencing the same, a chart showing CENVAT credit including closing balance filed vide Annexure-6 was produced. No reason was forthcoming as to why the same was not accepted by the Commissioner (Appeals) as sufficient proof that such mount by way of reversal of CENVAT credit was available that was to be treated as sufficient compliance to mandatory pre-deposit. Therefore, the finding of Commissioner (Appeals) in respect of non-compliance of provision contents in Section 35F is erroneous. Pre-deposit is a mandatory requirement for admission of appeal and not for its dismissal after the appeal has been admitted, heard and taken up for orders - In the instant case, the Commissioner (Appeals) though dismissed the appeal on the ground of noncompliance of pre-deposit provision, he also discussed the merit of the appeal in holding that the appellant is not entitled to avail such benefit w.e.f. 01.04.2012. This finding itself indicative of the fact that compliance of provision for pre-deposit was subconsciously accepted by the Commissioner (Appeals). Extended period of limitation - penalty - Held that:- It cannot be said that only because audit party had found some credit availed as inadmissible, suppression of fact is made out. It cannot also be established that appellant had any malafide intention to suppress its duty liability from the department. Therefore, CAG Audit cannot form the basis for invocation of extended period since audit normally goes from old period to new period and not in the reverse gear as supposed to be done to invoke extended period when abnormality is noticed in respect of non-payment or short payment during scrutiny of returns/records of the normal period. Appeal allowed - decided in favor of appellant.
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