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2022 (12) TMI 235 - CESTAT MUMBAILevy of equal amount of penalty u/s 78 of FA - availment of irregular CENVAT Credit was accepted by the appellant, the CENVAT Credit was reversed by them and the amount of interest was paid for such delayed reversal of credit - suppression of facts or not - HELD THAT:- In this case, both taking of CENVAT Credit and reversal thereof was within the knowledge of the Department, which is evident from the audit objection report issued to the appellant. It is an admitted fact on record that both the Service Tax along with interest was deposited by the appellant in the year 2016 and thereafter, show-cause proceedings were initiated against the appellant on 17.07.2018. Both the adjudication as well as the first appellate authority have not specifically discussed with the issue of involvement of the appellant in the fraudulent activities, concerning fraud, collusion, suppression of facts etc., with intent to evade payment of Service Tax. The proviso clause appended to Section 78 ibid cannot be invoked in the case of the appellant for imposition of penalty - Even otherwise also, the benefit provided under sub-section (3) of Section 73 ibid should be available to the appellant inasmuch as before issuance of show-cause notice, the appellant had deposited the disputed amount of Service Tax along with interest and also informed the Department regarding such payment. Hence, as per the mandates under statute, no action was required to be taken for imposition of penalty. Hence, on this count also, appellant’s case succeed on merit. Penalty set aside - appeal allowed - decided in favor of appellant.
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