TMI Blog2016 (4) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... dropping of the proceedings is no further penalty was imposed on the ground that under Section 73(3) no show cause notice could have been issued. On going through the nature of services and fact, it is found that Cenvat credit admissibility on the subject input services was contentious issue. The respondent could litigate the matter and they could have succeeded on merits. Moreover, it is beyond imagination that the entire Cenvat credit availed by them was liable to be disallowed. Taking into consideration of all these aspects, we are not interfering in the reversal of Cenvat credit, payment and interest thereof but respondent has clearly made out a fit case under Section 73(3) of Finance Act, 1994, according to which the department should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire credit availed during the period 2006-07 and 2007-08 which amounting to ₹ 1,76,43,553/- alongwith interest of ₹ 2,72,970/-. On payment of such amount appellant submitted an application dated 27/3/2009 to conclude the proceedings. However, the department issued show cause notice on 22/10/2009 which was culminated into adjudication order wherein Ld. Commissioner has dropped the proceedings accepting the application dated 27/3/2009 filed by the respondent for concluding matter under Section 73 (3) of the Finance Act. Being aggrieved by the said impugned order, Revenue filed this appeal. 3. Shri. R.K. Das, Ld. Dy. Commissioner (A.R.) appearing on behalf of the appellant / Revenue reiterates the grounds of appeal. He submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty could have been imposed. He further submits that in the appeal of the Revenue it was submitted that the Commissioner should not have dropped the proceedings under Section 73(3) however no specific prayer was made that what else could have been done by Ld. Commissioner. He placed reliance on judgment of Tribunal in the case of Bhoruka Aluminium Ltd Vs. Commr. of C. Ex., Mysore [2008 (11) S.T.R. 163 (Tri. Bang.)]. 5. We have carefully considered the submissions made by both sides. 6. We find that Ld. Commissioner has accepted the application dated 27/3/2009 submitted by the respondent under Section 73(3) of the Act, 1994 and dropped the proceedings of the show cause notice. In the result, the payment of Cenvat credit and interest st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire amount of impugned service tax credit through reversal of cenvat credit balance amounting to ₹ 1,65,61,869/- and through cash of ₹ 10,81,684/-. They have also paid the entire amount of interest amounting to ₹ 2,72,970/-. The only question to be decided is regarding penalty under section 78 etc. of the Finance Act, 1994. 14. It is observed that the matter was detected during the course of audit by the Departmental Officers. The noticee have submitted that they have decided to reverse the impugned service tax in order to avoid litigation with the Department. After payment of the service tax credit and interest, the noticee submitted an application under Section 73(3) of the Finance Act, 1994 on 27.03.2009 but t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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