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2019 (5) TMI 155 - AT - Service TaxPenalty u/s 78(1) of the Finance Act 1994 read with Rule 15 of CENVAT Credit Rules 2004 - wrongly availed CENVAT Credit reversed on being pointed out with applicable interest - No intent to evade - period involved was 2011-12 to September 2015 - HELD THAT:- Merely because service tax was paid or ineligible CENVAT credit was reversed prior to the show-cause notice, it does not absolve the assessee from the liability to penalty. The facts in each case have to be examined individually. The department’s contention is that there was suppression of facts in this case. Clearly, there was a mistake by the respondent in availing CENVAT credit. The department is free, while assessing returns, to call for further information and decide if there are errors/discrepancies. The mere fact that the break-up of the CENVAT credit availed was not given by the assessee cannot be held against them when the law does not require them to give this breakup. On the other hand, the conduct of the assessee as has been correctly recorded by the First Appellate Authority, in this case, does not indicate that they had any intention to evade payment of duty or to commit a fraud or had wilfully suppressed facts to evade payment of service tax. Penalty cannot be sustained - appeal dismissed - decided against Revenue.
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