TMI Blog2015 (11) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... est. - appellant have been paying about ₹ 15 crores of Central Excise & Service Tax P.A. during the period in question. Further the appellant being entitled to CENVAT credit on the service tax paid on the input services, there is no incentive to evade the service tax liability. Thus I hold that the appellant is entitled to the benefit under the provisions of Section 80 of the Finance Act. I further find under the facts and circumstances that the ingredients of penalty under Section 70 are not there as there is no finding as to the delayed filing of the returns. - Impugned order is set aside - Decided in favour of assessee. - Appeal No. ST/85503/14 - Final Order No. A/3178/2015-WZB/SMB - Dated:- 26-6-2015 - Shri Anil Choudhary, Member (Judicial) For the Petitioner : Shri Mayur Shroff, Advocate For the Respondent : Shri Sanjeev Nair, Examiner (A.R.) ORDER Per: Anil Choudhary: The appellant M/s Solar Industries India Ltd. manufacturer of excisable goods, is in appeal against Order-in-Appeal dated 19/11/2013, by which the penalty imposed on the appellant have been confirmed under Section various Sections. 2. The brief facts are that the appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposited towards short paid service tax and interest. Further penalty was proposed under the provisions of Section 76, 77, 70 and 78 of the Finance Act. 3. The appellant appeared and contested the show-cause notice stating therein that they have been regularly depositing the tax. Further the transactions are duly recorded in the books of accounts, maintained in the ordinary course of business. It was further pointed out that the records of the appellant have been under continuous audit by the Revenue since November, 2007 and periodical audits doing the years 2009, 2010, 2008, etc. Further explained that in its audited financial statement, and accounts discloses the value of transactions in foreign currency, under various heads. In the present case when audit asked the appellant to reconcile the figure, mentioned in the balance-sheet, transaction on which service tax was paid and and/or disclosed in ST-3 return, the said short payments were discovered by the appellant and the audit. That there was no case of any suppression, as the transactions have been recorded in the books of account. It was further explained that even before the first letter written by the Superintendent from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trality is concerned, the learned Commissioner held that the appellant being assessable of Central Excise and Service Tax assessee, was aware of obligations and further failed to deposit the tax in time as required under the Service Tax Rules. That it implies that there was a deliberate contravention of provisions of the Act. The line between evasion and avoidance of taxes is thin and the appellant cannot take shelter under some pretext. 5. Being aggrieved the appellant is in appeal before this Tribunal on the ground that the learned Commissioner have erred in holding that there is suppression on the part of the appellant which is not the case in view of the facts on record. Further the explanation given by the appellant, that the transaction being duly recorded in the books of accounts maintained in the ordinary course of business, the tax short paid is due to lack of coordination between the two departments of the appellant. The said explanation has not been found to be untrue and accordingly the learned Commissioner is in error in rejecting the same. It is further urged that the appellant had deposited the amount of tax along with interest, found short paid even before the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen revenue neutral situation comes about in relation to the credit available to an assessee himself in respect of the duty paid by him and not by the way of availability of the credit to the buyer of the assessees manufactured goods, the assessee cannot be accused of having contravened the rules with intent to evade the payment of duty and extended period under proviso to section 11A(1) would not be invocable. Accordingly; the Tribunal applied the ratio of the larger bench judgment and held that the larger period of limitation for short payment of duty would not be available to the revenue. It therefore held that that since in the facts and circumstances that was no evidence that the assessee committed any fraud or wilful misstatement, suppression of facts with intent to evade the payment of duty the penal provisions of section 11 AC also would not be applicable. The said ruling of the Tribunal was assailed before the Honourable Allahabad High Court and vide order dated 3-2- 2014, the Honourable High Court in CCE Vs. Accurate Chemical Industries- 2014(310)ELT 441 has upheld the order of the Tribunal observing that there no reason to interfere with the finding of fact that if a sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraud with the intention to evade payment of duty. The Honourable High Court thus held was that in the light of the absence of findings of clandestine removal of goods or any fraud, mis-representation, suppression of facts with the intention to evade duty, Section 11AC was not attracted as has been held by the Honourable Supreme Court in the case of Rajasthan Spinning and Weaving Mills- 2009 (238) ELT 3. The learned A.R. further relies on the Division Bench ruling of this Tribunal in the case of Bharat Automotive Pressings (I) Pvt. Ltd. Vs. CCE- 2010 (262) ELT 720 wherein the issue was the inclusion of the value of the moulds/dies which were supplied free of cost by buyer for the manufacture of final products by the aforesaid assessee. Therein, the defence was taken that there was conflict of decisions of the Tribunal and the issue finally settled in favour of revenue by the Larger Bench in Mutual Industries Ltd. The Tribunal held that the appellant had continue to exclude the amortized cost of moulds from the assessable value even after the decision in Flex Industries case (1997) which was to the effect that such cost was liable to be included in the assessable value of the goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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