TMI Blog2019 (2) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside the penalty invoking Section 80 of the Finance Act, 1994. The only ground on which the Revenue is in appeal is that the respondent is a repeated offender. However, analysis of the facts and evidences on record discloses otherwise - appeal dismissed - decided against Revenue. - APPEAL No. ST/88169/2018, ST/CO/86803/2018 - A/85235/2019 - Dated:- 29-1-2019 - Dr. D.M. Misra, Member (Judicial) Shri S.K. Hattangadi, Assistant Commissioner (AR), for appellant Shri Sumit Jhunjhunwala, C.A., for respondent ORDER This is an appeal filed by the Revenue against order-in-appeal No. 90/GH/2017-18/Raigad dated 16.3.2018 passed by Commissioner of CGST Central Excise (Appeals), Mumbai. 2. Briefly stated the facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent has been a repeated offender inasmuch as for the period 2004-05 to 2007-08, they wrongly availed the abatement under Notification No.1/2006-ST dated 1.3.2006 since they have also simultaneously availed cenvat credit, in violation of the condition of the said notification. The said amount was paid by the respondent on being pointed out by the audit in 2009. Thereafter, the same mistake was repeated for the subsequent period i.e. 2009-10 to 2010-11 involving a total service tax of ₹ 1.80 lakhs with interest of ₹ 53,121/- which they have paid on 1.3.2012. The learned Commissioner (Appeals) has not considered the fact that there was no bona fide mistake on the part of the respondent, hence penalty under Section 76 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department on 2.3.2010. 7. It is his contention that for the second period, they have not availed both the benefits, but to avoid litigation, the service tax along with interest was paid by them pursuant to the audit objection. He has submitted that the learned Commissioner (Appeals) dropped the penalty after considering all these facts. I find merit in the contention of the learned C.A. for the appellant. The learned Commissioner (Appeals) taking note of the fact that initially, the contravention was under bona fide mistake and on reversal of the cenvat credit amount, the audit para being closed and subsequent payment of service tax along with interest was not in contravention of the provisions, but to avoid litigation, set aside the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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