TMI Blog2014 (11) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... e that this is not the case of the Department that the input services have not been availed or payments not made for the same. In the circumstances, I find force in the plea made by Shri Rahul Aggarwal, CA for consideration of waiver of penalty and accordingly give benefit of section 80 of the Act and hold that no penalty under section 78 is imposable upon the assessee. I also note that this is not a case of short payment of Service Tax and therefore penalty under Section 76 of the Finance Act 1994 is not at all warranted. As regards imposition of other penalty is concerned, I hold some imposition is necessary as the invoices on which the Cenvat credit was availed have been found to have deficiencies which of course, which have been lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax and inadmissible Cenvat Credit have also been demanded. SCN dated 13.04.2006 was issued to the appellants for several irregularities in their ST-3 return for the period October 2005 to December 2005. 3. Shri Aggarwal further explained that as far as short payment of Service Tax was concerned, there are two such short payments, one for ₹ 22675/- and another for ₹ 18346/-. Regarding ₹ 22675/- Commissioner (Appeals)s findings are that the same has not been explained by the appellants and therefore he did not found any reason to dis-agree and accordingly confirmed this amount. As regards to short payment of ₹ 18346/- was concerned, the same has been paid by the assessee well before the issuance of the Show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices and made payments for the same and that for the mistake of the service providers, they should not be penalized. Alternately he also pleaded for condonation of penalty under section 80 on the grounds that no malafides can be attributed as they had availed credit on the basis of invoices of input service providers and everything was in records. 7. The DR on the other hand, contested the arguments of the appellants counsel on the grounds that the short payments made by them were detected by them from their ST-3 return; ₹ 18346/- was paid before issue of the SCN, however the interest leviable thereon was paid subsequently after issue of SCN. As per the findings of the Commissioner (Appeals), another short payment of ₹ 226 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been deposited. However this is subject to verification by revenue. Revenue shall also check that appropriate interest has also been deposited. 10. As far as imposition of penalty under section 76 of the Act is concerned, I intend to agree with the submissions made by learned Counsel that no malafides could be attributed to the assessee as the amounts were duly reflected in their ST-3 return and also as the amounts of short payment are rather on the lower side which have been paid voluntarily. I, therefore, extend benefit of section 80 to the assessee and refrain from imposing penalty under section 76 upon them. 11. Coming to the second issue of denial of Cenvat Credit, I find that the denial by the Commissioner (Appeals) is on count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not been availed or payments not made for the same. In the circumstances, I find force in the plea made by Shri Rahul Aggarwal, CA for consideration of waiver of penalty and accordingly give benefit of section 80 of the Act and hold that no penalty under section 78 is imposable upon the assessee. I also note that this is not a case of short payment of Service Tax and therefore penalty under Section 76 of the Finance Act 1994 is not at all warranted. As regards imposition of other penalty is concerned, I hold some imposition is necessary as the invoices on which the Cenvat credit was availed have been found to have deficiencies which of course, which have been later rectified. Accordingly imposition of penalty ₹ 2000/- under Rule 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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