TMI Blog2018 (7) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... - SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) And SHRI BIJAY KUMAR, MEMBER (TECHNICAL) Shri D.Haldar, AC(AR) for the Appellant (s) None for the Respondent (s) ORDER Per Shri P.K. Choudhary The facts of the case in brief are that the respondent assessee as alleged, availed and utilized 100% duty paid on capital goods in the same financial year i.e. 2006-2007 in contravention of provision of Rule 4(2) of Cenvat Credit Rules, 2004. It has also been alleged that there is a short payment during the period 2006-2007 on account of service tax liability. Accordingly show cause notice was issued. It is the case of the revenue that on scrutiny of ST-3 Returns for the period April, 2006 to September, 2006 and for the period Octob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax for the month of September 06 for ₹ 7,34,40,000/- and for the month of March 07 for ₹ 7,65,00,000/- towards payment of the same on 5 th October 06 and 5 th April 07 respectively on provisional basis as the actual Service Tax payable figure for every month is available at the end of 4 th week of the following month of collection of Service Tax. The provisional payment of Service Tax is made on an average computation keeping to the higher side to avoid short payment. But the actual amount of Service Tax received by sub-ledger unit was ₹ 6,69,72,262/- and ₹ 7,61,86,136/- for the month of September 06 and March 07. So there is total excess payment of ₹ 94,22,954/- during the period 2006-07. The expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the documents for the period 2006-07. But they have submitted that the same thing happened for the entire period of demand and they have not actually taken any excess credit. In absence of any contrary evidence available with the impugned notice, I would accept the submission of the said assessee. As such it is observed that the said assessee have actually availed 50% of the total amount of credit available to them. Effectively there was no excess credit taken by them. As such the demand under Rule-14 of CENVAT Credit Rules 2004 in this case is not sustainable. Revenue has preferred this appeal against the impugned order. 2. None appears on behalf of the respondent assessee inspite of issuance of notice. No request for adjourn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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