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2015 (11) TMI 973 - CESTAT AHMEDABAD

2015 (11) TMI 973 - CESTAT AHMEDABAD - TMI - Denial of CENVAT Credit - Demand of interest - Penalty u/s 78 - Held that:- appellant discharged the service tax liability by way of cenvat credit, which otherwise would have been utilised for payment of dues, and hence the interest liability should be restricted to from the date the liability arose to the date of payment made through cenvat credit - Tribunal in the case of CCE, Mumbai vs. CEAT Limited [2010 (3) TMI 621 - CESTAT, MUMBAI], in Para 9 of .....

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he date of liability of tax to the date of payment of same through cenvat credit. The same may be quantified by the adjudicating authority. - appellants were not aware of the amended provisions and there was no intention to evade tax. Hence, imposition of equivalent penalty under Section 78 of the Finance Act, 1994 is not warranted and the same is set-aside. - Decided partly in favour of assessee. - Appeal No. : ST/12720/2014 - Order No. A/11589 / 2015 - Dated:- 30-10-2015 - Mr. P.M. Saleem, Mem .....

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, whereas the actual gross value as per the Taxation Rules, 2011, was ₹ 2,34,50,268/-. Thus, difference of gross value as per Point of Taxation Rules, 2011 vis-vis the gross value as shown in ST-3 return had resulted in short payment of service tax of ₹ 14,88,546/-. It was also noticed that the appellant had paid the differential service tax amount of ₹ 96.821/- through GAR-7 Challan and the remaining amount of ₹ 13,91,725/- was paid by way of making debit entry in their .....

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authority vide impugned order-in-original confirmed demand of ₹ 13,91,725/- along with interest and imposed penalty of equal amount under Section 78 of the Finance Act, 1994. A penalty of ₹ 2,000/- was also imposed under Section 77 of the Finance Act, 1994. The appellant filed appeal against the said order-in-original before the Commissioner (Appeals), who by the impugned Order-in-Appeal, rejected the appeal and upheld the order-in-original. Aggrieved by the same, appellants are bef .....

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ed neither by the original adjudicating authority nor by the Commissioner (Appeals). He submits that once they have discharged the tax liability by way of payment through cash, the initial payment made by way of cenvat credit should be allowed to be re-credited. He also fairly concedes that they are liable to pay interest, but the same should be limited from the date of liability to the date of payment of tax by way of cenvat credit. He submits that had they not utilised the cenvat amount for pa .....

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he appellants should be set-aside. He also pleads that this is a fit case for waiving of penalties altogether under the provisions of Section 80 of the Finance Act, 1994. 3. On the other hand, learned Authorised Representative for the Revenue in addition to reiterating the findings of the lower authorities, submits that appellant had not paid the amount by cash at the time of adjudication of the matter and therefore, there was no way that the original adjudicating authority could have ordered fo .....

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case of CCE, Mumbai vs. CEAT Limited 2010 (254) ELT 349 (Tri. Mum.), in Para 9 of the order, held that credit is to be restored. This decision of the Tribunal was upheld by the Hon ble High Court of Bombay, reported as 2013 (298) ELT 525 (Bom.). Further the Hon ble Gujarat High Court in the case of Cambay Chem Limited vs. UOI 2010 (252) ELT 359 (Guj.) held as follows:- 5. Thus, it is apparent that the petitioner, who has already made the payment by utilising CENVAT credit is ready & agreeab .....

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effect on/or before 2-4-2009 with Respondent no. 2, with a copy to be placed on record of this petition and make such payment on/or before 16-4-2009. Upon filing of such undertaking, respondent authority is directed to lift the attachment effected vide order dated 9-3-2009 within a period of three working days thereafter. 7. The petitioner shall be allowed to take re-credit by crediting CENVAT account only after actual payment in cash/from P.L. Account is made. 5. As regards the interest, we fin .....

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