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M/s INDIAN INSTITUTE OF TECHNOLOGY (IIT) , MUMBAI Versus COMMISSIONER OF SERVICE TAX-II, MUMBAI

2015 (11) TMI 1347 - CESTAT MUMBAI

Waiver of penalty - Cenvat credit - Credit availed for both exempted and non exempted services - Non maintenance of separate accounts - Held that:- Appellant M/s. IIT is reputed Technical Education Institute of Government of India, therefore, there cannot be malafide intention for the reason that there is no individual who can be benefitted by taking wrong Cenvat credit. Therefore, malafide intention does not exist. - issue involved is wrong availment of Cenvat credit due to reasons that either .....

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t. In view of this fact, the appellant made out fit case for waiver of penalty under Section 76 invoking Section 80 of Finance Act, 1994 - However, penalty on Section 77 is upheld - Decided partly in favour of assessee. - Appeal No. ST/422/11, ST/CO/101/11 - Final Order Nos. A/3620-3621/2015-WZB/STB - Dated:- 14-10-2015 - P S Pruthi AND Ramesh Nair, JJ. For The Appellant : Shri R G Sheth, Adv. With Ms. Puloma Dalal, C.A For The Respondent : Shri A K Goswami, Addt. Dy. Commr. (A.R.) Per: Ramesh N .....

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n 76 and penalty of ₹ 5000/- under Section 77(I)(b) and 77 (2) of Finance Act, 1994 were also imposed. 2. The facts of the case is that the appellant are holding Service Tax Registration for rendering Scientific and Technical Consultancy Services' classifiable under Section 65(105)(za) of Finance Act, 1994. M/s. Indian Institute of Technology (IIT), Mumbai (M/s., IIT) had been filing prescribed ST-3 Service Tax returns. The appellant had been availing Cenvat credit on the inputs such a .....

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es, it was used for exempted services on which Cenvat credit was not admissible in terms of Rule 6(1) of CCR, 2004. Appellant is not maintaining separate account for taxable and exempted services. Various show cause notices were issued which were adjudicated by common adjudication order, which is the impugned order in present appeal. 3. Shri R.G. Sheth, Ld. Counsel with Ms. Puloma Dalal, C.A. appearing on behalf of the appellant, at the out set submit that as per instruction of the appellant, he .....

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rvice tax is paid. The present issue is only in respect of availment of Cenvat credit on input services. He submits that since IIT performs various activities, it is practically very difficult to maintain a separate account to ascertain which services and how much proportion of the services are used for taxable activity and how much and which services are used for exempted services and due to this difficulty the appellant availed Cenvat Credit on the input services which either not used in the t .....

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enalties should not have been imposed by the Adjudicating authority in terms of Section 80 of the Finance Act, 1994. He further submits that there is no malafide on the part of the appellant in taking inadmissible Cenvat credit. The appellant is Government reputed technical institution. There is no individual beneficiary in taking wrong Cenvat credit, therefore malafide is not proved. Consequently penalty is not imposable on the appellant. He placed reliance on the following judgments: (a) BSNL .....

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appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that the institution is though of government but is working in very organized manner and they are registered since 2001 and discharging service tax regularly. In such situation it cannot be said that the appellant are ignorant of Cenvat credit provisions therefore reasonable cause was not shown for waiver of penalty. 5. We have carefully considered the submissions made by both sides. 6. Though the appeal .....

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