9911796707
TMI Blog2014 (8) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... records was conducted in April, 2011. Thereafter show-cause notice was issued proposing recovery of the credit wrongly availed with interest and imposition of penalty. In the meantime, appellants paid service tax and interest. In the appeal, appellant is not contesting the liability of service tax and interest, but only contesting the imposition of penalty. 2. The ld. Counsel on behalf of the appellants submits that in this case the appellants had paid service tax availed by them with interest on 6-9-2011 and on finding that there was some mistake in calculating the interest; they paid the balance amount in November, 2011. It is also his submission that service tax liability with interest had been discharged before receipt of show-ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. 73 of the Finance Act, 1994. 3. The ld. AR would submit that the appellants did not pay full amount before the issue of show-cause notice. The show-cause notice was issued on 2-9-2011 and therefore, penalty has to be upheld. 4. The ld. Counsel submits that the show-cause notice was not received by them before making the payment. 5. I have considered the submissions of both sides. On going through the records and considering the submissions, I find that audit was conducted in April, 2011; appellant paid Cenvat credit taken with interest on 6-9-2011; show-cause notice is dated 2-9-2011; show-cause notice was signed on 4-9-2011. Under these circumstances, claim of the ld. Counsel that payment was made before receipt of sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt before the issue of show-cause notice but waited for show-cause notice to be issued and challenged the same on the ground of limitation thereafter. The very fact that the appellant paid the amount before issue of show-cause notice and when it was found that interest liability was not fully discharged, they paid the balance, in my opinion, would go in favour of the appellants. Having regard to the facts and circumstances discussed above and after considering the records, I find that this was not a case for invoking extended period for imposition of penalty. 7. In view of the above discussion, penalty imposed on the appellant is set aside and demand for wrongly availed Cenvat credit with interest is upheld as not challenged. (Dictat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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