TMI Blog2018 (12) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... :- The issue is interpretational one and also taking note of the fact that the appellant has filed the appeal before the Hon’ble High Court on the bonafide belief that the credit is eligible, the penalty imposed are unjustified and requires to be set aside. Appeal allowed in part. - Appeal No. E/42246 to E/42248/2016, E/40853/2017 - FINAL ORDER No. 42991-42994/2018 - Dated:- 4-12-2018 - Ms. Sulekha Beevi C.S., Member (Judicial) Sh. R. Hari Radhakrishnan, Advocate For the Appellant Shri K. Veerabhadra Reddy, ADC (AR) For the Respondent ORDER Per: Ms. Sulekha Beevi The issue involved in all these appeals being the same, they are heard together and disposed by this common order. 2. On behalf of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,00,000/- under rule 15 (1) of the Cenvat Credit Rules 2 E/42247/2016 November 2013 Rs.4,55,755/- 3 E/42248/2016 December 2013 to February 2014 Rs.4,69,015/- 4 E/40853/2017 March 2014 to November 2014 Rs.15,09,232/- Penalty of ₹ 1,50,923/- under Rule 15 (1) read with Section 11 AC (1)(a) of the Central Excise Act, 1944. 3. The Ld. Counsel was fair enough to concede that the issue stands covered against the appellant in the appellant s own case vide F.O.No.40051/2014 dt.24/1/2014. The appeal fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case. Therefore I do not find any reason to allow Cenvat credit in such circumstances. 15. The argument that the credit on such transportation service can be taken by considering such activity as service in relation to business has been negative by the Hon Karnataka High Court in the case of CST Vs. ABB Ltd- 2011 (23) S.T.R. 97 (Kar.) 16. From the facts of the case, I am of the view that the job-worker or the appellant could have taken credit if service tax incidence was borne by the person paying duty on final product and appropriate procedure was followed. However, procedures laid down for taking credit cannot be by-passed based on argument of revenue neutrality or the argument that if not appellant someone else could have tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5000 imposed. 7. Following the said decision, I am of the view that credit is not admissible. The Ld. Counsel has also argued to waive the penalties. Taking into consideration that the issue is interpretational one and also taking note of the fact that the appellant has filed the appeal before the Hon ble High Court on the bonafide belief that the credit is eligible, I am of the view that the penalty imposed are unjustified and requires to be set aside. From the above discussions, I hold that the impugned orders to the extent of penalties imposed only is set aside, without disturbing the demand or interest thereon. The appeals are partly allowed with consequential relief, if any in the above manner. (Operative part of the order pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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