TMI Blog2018 (6) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... ed - appeal dismissed - decided against Revenue. - APPEAL No. E/70048/2016-EX[SM] - A/70911/2018-SM[BR] - Dated:- 15-12-2017 - Mr. Anil Choudhary, Member (Judicial) Shri Mohd. Altaf, Assistant Commissioner (AR), for Appellant Shri B. K. Singh, Advocate, for Respondent Per: Anil Choudhary The issue in the present appeal is, whether M/s Balsons Paint Industries (India) (hereinafter referred as M/s BPIL for short) have failed to follow procedure by failing to pay an amount equal to 8% (for 2008-09 to April, 2009-July, 2009) and/or 6% (for September, 09-March, 2010 to 2010-11) of the value of exempt services, i.e. trading of raw material during the period 2008-09 to 2011-12. 2. The brief facts of the case are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intained and suppression of providing exempted services. 3. Vide OIO, the Adjudicating Authority has held that failure to maintain separate accounts in terms of Rule 6(2) of Cenvat Credit Rules, 2004, which provides that trading as services was already covered under the definition of exempted service and because of that failure to disclose availing of Cenvat credit on input service, which only came to the notice of the Department during audit, thus there was suppression. The duty paying documents through Debit notes are invalid and penalty to be imposed equal to the duty determined under the provisions of Section 11AC of the Central Excise Act, 1944. Further confirmed the demand of ₹ 15,89,542/- and disallowed Cenvat credit of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices (as amended by Notification No. 3/2011-CE (NT) dated 01.03.2011) read with the concept of Negative List and application of the mischief of Rule 6 of Cenvat Credit Rules, 2004. (c) The observation made by ld. Commissioner (Appeals) in the impugned OIA while setting aside the penalty imposed, that the Revenue had failed to establish the ingredients of a contumacious conduct is erroneous. (d) Failure to disclose availing of Cenvat credit on input service, which only came to the notice of the Department during audit, thus there was suppression. (e) Penalty to be imposed equal to the duty determined once ingredients of Section 11AC of the Central Excise Act, 1944, relying upon the decision in the case of Union of India Versus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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