TMI Blog2018 (11) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... s guilty of conduct concumacious or dishonest or acted in conscious disregard of its obligation - penal proceedings dropped. CENVAT Credit - input service - Works Contract Service - Held that:- The demand of Credit of service tax paid on Work Contract Service has already been dropped - demand withheld. Short payment of Central Excise Duty - price escalation bills raised - Held that:- Since the duty is payable on price escalation and the appellant could not have produced any document proving that the railway authorities had finalised the amount of those 13 bills at an amount of ₹ 55,22,821/-, it is held that the order under challenge has rightly confirmed the said demand. Apparently, the appellant has failed to prove that the Bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4). During an audit for the year 2013-14, the Department observed as follows:- (i) they have wrongly availed cenvat credit of ₹ 42,580/- (Correct figure ₹ 43,075/- including cess) under capital goods account, on the goods MH Sheet Metal Components (Rail) which is not covered under the definition of capital goods as defined under Rule 2(a) of Cenvat Credit Rules, 2004. (ii) they irregularly availed cenvat credit of service tax amounting Ro ₹ 3,999/- and paid on vehicle insurance premium and health insurance premium and ₹ 2,66,822/- on construction services related to their office at ATHENA Building situated in City Central Gwalior which is excluded under excluding clause (BA) [A(a)] from the definit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of capital goods and the cenvat credit of ₹ 78,663/- service tax paid on work contract service were held to be admissible. The consequent interest and penalty was also set aside and rest of the order of original Adjudicating Authority was confirmed. Being aggrieved of the part confirmation of the demand, the impugned appeal has been filed. 2. We have heard Ms. Rinki Arora, Ld. Counsel for the appellant and Ms. Tamanna Alam, Ld. DR for the Department. 3. It is submitted that the demand of Show Cause Notice as have been dropped by the Oder-in-Appeal since have not been challenged by the Department, the same have attained finality. With respect to the cenvat credit on the vehicle insurance and with respect to the construction serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Appeal is prayed to be set aside. 5. After hearing both the parties, we are of the opinion as follows:- The demand of cenvat credit of ₹ 42,580/- on the goods used for repair of capital goods and the demand of cenvat credit of service tax of ₹ 78,663/- paid on Work Contract Service has already been dropped vide the Order under challenge. The Department has not preferred any Appeal qua the said dropping. We otherwise find no infirmity in the said Order. Resultantly, the dropping of both the said demands is hereby upheld. 6. The irregularly availed cenvat credit paid on the vehicle insurance premium and health insurance premium has admittedly been reversed. It is also an admission that the same was reversed by the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case law and keeping in view that there is no such evidence on record by the Department which might prove a positive act on the part of the appellant that the credit was availed by him with the malafide intention of causing loss to the Revenue. In absence thereof, the penalties qua the reversal of wrongly availed cenvat credit are held to have rightly been dropped. For the said reason itself, the penalty even for the short payment of Central Excise duty is hereby set aside. 8. Now, coming to the issue of short payment of Central Excise duty on the price escalation bills raised for ₹ 74,94,955/-. From the 13 escalation bills, it stands clear that there is a calculation error in arriving to the said amount and in fact out of said bi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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