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TMI Blog2017 (4) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... A Show Cause Notice dated 15.07.2008 was issued alleging irregular availment of CENVAT credit to the tune of Rs. 4,05,313/-, proposing to recover the same alongwith interest and also proposing to impose penalties. After due process of law, the original authority confirmed the same alongwith interest and imposed penalties. In appeal, the Commissioner (Appeals) remanded the matter for denovo and vide denovo order dated 18.05.2010, the adjudicating authority confirmed the demand of Rs. 72,547/- alongwith interest and imposed equal amount of penalty. In appeal, vide order impugned herein, the Commissioner (Appeals) set aside the penalties imposed invoking Section 80 of Finance Act,1994. The appellant is before the Tribunal challenging the dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut basis. That, therefore, the demand is time barred. 3. Against this, the Ld. AR Shri Nagraj Naik reiterated the findings in the impugned order. He has submitted that the appellant had availed credit on the documents which do not contain full details. In certain cases, they have availed credit on VAT paid by them which is totally inadmissible. He has pointed out that the appellant has availed irregular credit by suppressing facts of availing credit. That the Commissioner (Appeals) has only applied section 80 of Finance Act, 1994 observing that the appellant has put forward reasonable cause for availing irregular credit and thereby set aside the penalty imposed under section 78 of Finance Act, 1994. 4. I have heard the submissions made be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h any evidence, even at this stage of appeal, in proof that they have paid the amounts which they have agreed to be not eligible. There is no reply with regard to the specific observations made and non-availability of documents mentioned. Hence the appellants arguments on paper without any evidence on record are baseless. However, with regard to the penalties, I am of the view that there can not be any intent on the appellants part to evade service tax as they are not familiar with the law as could be evidenced by the facts that they have taken credit of VAT, VAT on purchase of items and double entry of the same credit by inadvertence. Further, substantial demand of Rs. 4,05,313/- got reduced, as contended by the appellants, to Rs. 72547/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmed in terms of Section 73 of the Finance Act. The proviso to Section 73 of the Finance Act allows the Revenue to raise the demand within the extended period of 5 years for fraud, wilful mistake, suppression of facts or contravention of provisions of the Act, with intent to evade payment of duty. As such, it is clear that provision of Section 73 is invokable when there is no reasonable cause on the part of the assessee not to pay the duty inasmuch all the circumstances mentioned in the said proviso relate to mala fide intention. As such, it can be reasonably concluded that proviso to section 73 and Section 80, if interpreted in a harmonious manner lead to only one fact that is absence of mala fide and presence of bona fide. 8. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance Act, 1994, the demand confirmed for the extended period cannot be sustained. Further in the case of Solitz Corporation V. CST, New Delhi [2009 (14) S.T.R. 642 (Tri.-Del.)], it was observed that inasmuch as the impugned order hold sufficient cause for invocation of Section 80 of the Finance Act, for waiver of penalty, extended time-limit is not invocable." 7. Show Cause Notice has been issued invoking the extended period of limitation alleging suppression of facts with intent to evade payment of duty. Therefore, as the Commissioner (Appeals) has recorded his finding that there is no intention on the part of appellant to evade payment of service tax, the demand raised invoking the extended period also becomes unsustainable. In CCE Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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