TMI Blog2018 (11) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty 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 - appellant had not only reversed the credit which was held by the audit party as inadmissible but had also intimated the fact of such reversal by e-mail to the competent authority. Audit being one of the ways by which departmental authorities can bring the fact of inadmissibility of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 authority had imposed penalty of the equalent amount of inadmissible Cenvat Credit and the same was unsuccessfully challenged before the Commissioner (Appeals) as he confirmed the finding of the adjudicating authority. 3. In its memo of appeal and during course of hearing of the same the Learned Counsel for the appellant submitted that there was no specific mode prescribed in the statute or rule for submission of Cenvat Credit documents or related information to the Excise Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Cenvat Credit and therefore the interference by the Appellate Tribunal in the order passed by the Commissioner (Appeals) is uncalled for. 5. Heard from both the sides and gone through the case record as well as judicial decisions cited by both the parties which firm part of the appeal case record. Admittedly, appellant s availment of Cenvat credit which was held by the audit party is inadmissible is not being questioned in this appeal about its legality. In his Order-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wise 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 examined by CERA audit party to point out the deficiencies, leakage of revenue and non recoveries of dues by the Central Excise Department. Therefore it cannot be said that only because audit party had found some credit availed as inadmissible, suppression of fact is made out. 6. As found from the show cause notice as well as from the OIO and OIA, the credit was held to be inadmissible on the ground that after sale services credit should not go to the manufacture but nowh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod 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 one co-relation of the credit availed is not a basic requirement of Cenvat Credit rules. Furthermore appellant had not only reversed the credit which was held by the audit party as inadmissible but had also intimated the fact of such reversal by e-mail to the competent authority. Audit being one of the ways by which departmental authorities can bring the fact of inadmissibility of credit to the knowledge of the assessee on verification of its document for which ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
