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2019 (9) TMI 113 - AT - Central ExciseCENVAT Credit - suppression of facts for non-payment of service tax under reverse charge basis - Rule 9(1)(bb) of Cenvat Credit Rules, 2004 - HELD THAT:- Though the matter was investigated by the Preventive Officer but after pointing out the non- payment of service tax, the appellant have admittedly paid the amount along with the interest and penalty under Section 76, thereafter, neither any SCN was issued nor any adjudication order was passed on the issue of non-payment of service tax. Consequently the proceeding, as regard the demand of service tax came to an end. This closer itself shows that there is no suppression of facts involved. Since, there is no case being covered under proviso under Section 73(1), there is no suppression Moreover, the department itself in writing asked the appellant to pay the penalty under Section 76, otherwise in case of suppression of facts the provision of Section 78 is invokable which was neither invoked nor asked to pay the penalty under Section 78. These undisputed facts clearly show that there is no suppression of facts on the part of the appellant for non-payment of Service Tax. Rule 9(1)(bb) cannot be invoked, accordingly, the denial of cenvat credit is not tenable - appeal allowed - decided in favor of appellant.
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