TMI Blog2013 (4) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... r own by adjusting and debiting the amount in the Cenvat credit available with them. Subsequent scrutiny has resulted in issuance of SCN to the appellant and the same has been issued after three years. Since the credit was available with the appellant and the excess amount inadvertently utilised was debited in the very next month, though it happened twice, there was no intention to evade the service tax liability as the appellant has been regularly filing returns with the lower authorities. Thus, this is fit case, for invoking the provisions of Section 80 and set-aside the penalty imposed by the lower authorities. As regards the interest amount, it is his submission that the same may be calculated by the revenue and on being informed to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the service tax amount availed by them is correct since they have made the payment to the service provider. Also the appellant has not followed the provisions of Rule 6(3) (c) and utilised excess credit thereby wrongly utilised credit equivalent to Rs. 4,77,346/-. Accordingly, show cause notice dated 27.1.2010 was issued, matter was adjudicated and cenvat credit of Rs. 4,81,486/- was disallowed under Section 73(1) of the Finance Act, 1994 read with Rule 14 of Cenvat Credit Rules, 2004 and imposed penalty under Section 75,76,77 and 78 of the Finance Act, 1994. 3. Aggrieved by such an order the appellant preferred an appeal before the first appellate authority and the first appellate authority, after considering the submissions made, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t error has been made good by the appellant on their own by adjusting and debiting the amount in the Cenvat credit available with them. Subsequent scrutiny has resulted in issuance of show cause notice to the appellant and the show cause notice has been issued after three years. Since the credit was available with the appellant and the excess amount inadvertently utilised was debited in the very next month, though it happened twice, I find that there was no intention to evade the service tax liability as the appellant has been regularly filing returns with the lower authorities. I find that, this is fit case, for invoking the provisions of Section 80 and set-aside the penalty imposed by the lower authorities under Section 76 and 78 of the F ..... X X X X Extracts X X X X X X X X Extracts X X X X
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