TMI Blog2018 (7) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... plea of revenue neutrality. Without proper challenge to such a finding with regard to the malafide intent, the appellant cannot challenge the imposition of penalty and claim waiver in terms of Section 80 just on the ground of revenue neutrality. No cogent reason has been put forth to establish the bonafides by the appellant - invocation of Section 80 of the Finance Act, 1994 not justified - appeal dismissed - decided against appellant. - Appeal No. ST/85364/2018 - A/86800/2018 - Dated:- 24-5-2018 - Mr. Sanjiv Srivastava, Member (Technical) Shri Prasad S. Tendulkar, Advocate for appellant Shri Dilip Shinde, Asst. Commr (AR) for respondent ORDER Per: Sanjiv Srivastava The appeal in the present case is agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of Revenue, learned A.R. submitted that in the present case the appellant had paid taxes only after being pointed out by the department and interest due have been paid only after the decision of the Commissioner (Appeals). Further, the appellant has not put forth any ground establishing its bonafide in the matter except for revenue neutrality. He further states that revenue neutrality may not be available to the appellant as taxes which have been paid after notice and invocation of extended period of time would justify in this case. He further stated that since no cogent reason to establish the bonafide have been put forth, section 80 of the Finance Act, 1994 should not be invoked in this case and penalty be upheld. 5. I have c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided by the overseas service provider may be supplied along with goods i.e. furnace so the nature of service becomes Works Contract service and as per exclusion clause of definition of input service , the Works contract service is not as eligible input service. Thus the assessee planned to avoid the service tax on such service, the Cenvat Credit of which was not available. So in light of above discussions, it is concluded that penalty cannot be waived as the transaction was not revenue neutral. This adjudicating authority believes that the service provided by the overseas provider is of original work of erection, commissioning or installation of furnace and Cenvat Credit of such service cannot be availed as per Rule 2(1) (A) of CENVA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f extended period is clearly laid down in para 16 of the show cause notice and reiterated in para 27 of the impugned Order. The plea of revenue neutrality is also not correct as the interest liability is established in this case. Further, the Hon ble Apex Court in para 35 of the Order in the case of Star Industries Vs. Commissioner of Customs (Import), Raigad [2015 (324) ELT 656 (SC)] held as under: 35. It was submitted by the learned Counsel for the assessee that the entire exercise is Revenue neutral because of the reason that the assessee would, in any case, get CENVAT Credit of the duty paid. If that is so, this argument in the instant case rather goes against the assessee. Since the assessee is in appeal and if the exercise is R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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