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2023 (7) TMI 663 - CESTAT KOLKATAReversal of CENVAT Credit - buying SIM cards at a discounted price and then selling the SIM cards to a lesser discounted price in the retail market thereby earning a profit through difference of discounts - Revenue alleged that the appellant was selling the SIM cards without any further processing and therefore as per Rule 3(5) of the Cenvat Credit Rules, 2004, they were liable to reverse the equal amount of credit availed on the inputs. HELD THAT:- The appellant has been filing Service Tax returns regularly and paying service tax. The details of credit availed and utilized by them have been disclosed in the ST-3 returns filed by them. The value of taxable services rendered by them have been disclosed in their Balance Sheets. The two issues have been raised by the department during the course of audit, from the data disclosed by the Appellant. Thus, it is observed that the appellant has not suppressed any information from the department. All the details have been taken from their audited balance sheet. In such cases suppression of fact with an intention to evade payment of duty cannot be alleged. In the present case also, the details have been taken by the Audit party from the audited balance sheet. The department has not established any suppression on the part of the Appellant. The impugned order is also silent on this - the provisions of section 78 are not applicable in this case. Accordingly, penalty imposed under 78 is liable to be set aside. Appeal allowed.
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