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2018 (9) TMI 89 - CESTAT NEW DELHIInput Service Credit - The Department alleged that appellant has wrongly availed input service tax credit for a period October, 2007 to June, 2012 - Reversal already made by way of deposit - SCN dated 16.07.2015 was served upon the appellant raising a demand of service tax under proviso to Section 73(1) of the Act read with Rule 14 of Cenvat Credit Rules, 2004 (CCR for short) alongwith the equal amount of interest and penalty. Held that:- It is appellant’s own admission that he wrongly availed the credit. Thus, the demand confirmed for one year by the Order under challenge has no infirmity nor while limiting the same to normal period of one ear. It is also apparent from record that the appellant deposited the said wrongly availed credit only after the Department brought it to the appellant’s notice. However, the simultaneous fact is that the time of filing the ST-3 return for the period of October, 2008 to July, 2012 qua the said utilisation had not yet expired. The said ST return was filed on 24.04.2013 since the credit availed was being returned on 16.04.2013, i.e. prior filing of return, it is clear that the stage of suppressing the fact as alleged by the Department has not yet come - the deposit by way of reversal cannot be held to be a delayed deposit. Thus, question of any interest and penalty thereof does not at all arise. The Order under challenge confirming the said demand however limiting it to the normal period of one year is though upheld but demand of equal amount of penalty and of applicable interest is set aside - Appeal allowed in part.
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