9911796707
TMI Blog2018 (11) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... . During EA audit conducted in the month of June 2016 it was brought to the notice of appellant that certain inadmissible Cenvat Credits were availed by the appellant for the period between Oct-11 to Mar-15 amounting to Rs. 8,71,885/- and the same was immediately reversed on 30th June 2016 itself. But it was put to show cause vide notice dated 04.11.2016 to show reason as to why penalty under Section 11AC of Central Excise Act 1944 read with rule 15(2) of CENVAT Credit Rules, 2004 was not to be imposed for willful suppression of fact with intend to evade payment of duty as well as deliberate non disclosure of input services availed by the appellant. Reply of the appellant was found to be not satisfactory. Accordingly the first adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals) and the rationality of his findings. Referring to the discussion made by the Commissioner (appeals) at Para 40, he submitted that appellant had misstated the description of services as manpower salary, wages but the expenditure covered was towards reimbursement of travelling expenses, hotel bill of staff debited for after sale service or outsourced towards fulfillment of maintenance contract of the product supplied by the appellant company and those are in the nature of after sale service for which credit to the manufacture cannot be given. Appellant company being a large tax paying unit is well conversant with taxing statute and its procedure for which its conduct can never be said to be bonafide in availing inadmissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ried out in the presence of assessee. In the process, the auditor is required to discuss the matter with the assessee and advice him to follow correct procedure in future. It is also referred in the said manual that after such submission of audit report, in cases where the disputed amount has not already been paid by the assessee at the spot, demand notices are issued by the department for their recoveries. EA 2000 audit was therefore held to be participative audit. Likewise CERA audit is conducted by the Comptroller and Auditor General of India in respect of receipt and expenditure of the Government of India. It also discharges revenue audit which covers central excise, service tax and customs laws during which time the assessees were exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which deals with penalty on short levy or non levy of duty clearly indicates under 1(C) that such suppression of fact must have been done with intend to evade payment of duty and the intention of the appellant is found absent in the sense that its availment of allegedly inadmissible credit was previously subjected to scrutiny by the audit parties at least on three occasions as reveals from the audit report vide Exhibit (I), Exhibit (J) and Exhibit (K) of the period under dispute. Moreover, the alleged inadmissibility runs into lakhs, considering the largeness of tax payment by the appellant in crores, it comprised of only 0.2% of its total Cenvat Credit allegedly wrongfully availed. It is also found from the show cause and OIO that one to o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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