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2019 (6) TMI 73 - AT - Service TaxImposition of penalty - irregularly availed CENVAT Credit reversed before the issuance of show cause notice - intent to evade or not - HELD THAT:- In the instant matter since the appellant had sufficient balance in cenvat account therefore it cannot be said that they had utilised the same. It is not disputed that after it was pointed out by the audit party the same was reversed by the appellant immediately without even waiting for the show casue notice, therefore it cannot be said that there was any intention on the part of the appellant to evade payment of tax or that they had utilised the amount credited. It is settled by catena of decisions that wrong availment of cenvat credit but non-utilising the same do not lead to any consequence. In the present case, the Revenue has failed to brought on record any evidence to prove fraud or collusion or wilful suppression on the part of the Appellant and the Appellant by its conduct has proved that that there was no malafide intention on its part and it was only a bonafide error on the part of the Appellant, which was rectified immediately on pointing out by the audit party and therefore in these circumstances no penalty is imposable on the Appellant. Appeal allowed - decided in favor of appellant.
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