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2018 (12) TMI 1098 - AT - Central ExciseCENVAT Credit - service tax paid belatedly - reverse charge mechanism - Rule 9(1)(bb) of Cenvat Credit Rule, 2004 - whether the appellant is entitled for Cenvat Credit in respect of Service Tax paid belatedly on the services received from abroad under Reverse Charge Mechanism? Held that:- As per Rule 9(1)(bb) it is observed that the credit can be denied only if the short payment or non-payment for the reason of fraud or collusion or willful mis statement or suppression of fact or contravention of any of the provisions of the finance Act or Rules made there under with intent to evade payment of Service Tax - From reading of above Section 73 (4A) it is seen that it starts with the terms “not with-standing anything contained under 73 (4A) which deals with situation whether there is a fraud or collusion or willful mis-statement or suppression of fact etc, therefore, when the appellant have availed Section 73 (4A) and the case of non-payment of Service Tax stood concluded by making payment of Service Tax along with interest and 15% penalty, it cannot be said that there is suppression of fact on the part of the appellant. When there is no adjudication, whether there is fraud or collusion or willful mis statement or suppression of fact the same is not established, therefore, after making the payment under Section 73 (4A), the case stand concluded, there cannot be charge of fraud or collusion or willful mis statement or suppression of fact etc. Accordingly, credit on that amount cannot be denied. The denial of Cenvat Credit by the lower authority is not legal and proper - appeal allowed - decided in favor of appellant.
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