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TMI Blog2019 (5) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice recipient, respondents were also paying service tax under the category of rent-a-cab services. A show-cause notice was issued covering the period 2011-12 to 2015-16 consequent upon an audit by the department seeking to deny CENVAT credit availed on rent-a-cab services and event management services totalling Rs. 25,73,135/-. Prior to the issue of show-cause notice, in October 2016 the respondent assessee had reversed the entire amount of disputed CENVAT credit on being pointed out by the audit even before the issue of show-cause notice. Thereafter a show-cause notice was issued and the amount already paid by them has been confirmed and appropriated towards the ineligible CENVAT credit to be recovered. A penalty was also imposed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any mechanism or any deals to fathom malafide intent in the mind of tax payer, the evasive nature or mens rea of the assessee can be gauged only from the facts and circumstances of the case. The ST-3 returns require reporting of transactions in a concise manner and assessee is expected to ensure that correct CENVAT is taken. The mere fact that the appellant has filed ST-3 returns does not show that they had no intention to evade payment of service tax. Non-inclusion of taxable value of the declared services in the statutory ST-3 returns by the assssee resembles the deliberate act of suppression of details of value of the services rendered with an intention to evade payment of duty and for this reason, the penalty was correctly imposed upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (3) was intended to confer an extended benefit much more in nature than the varying degrees of penalty imposed under the different provisos of sub-section (1) of Section 78. It is true that sub-section (4) of Section 73 keeps the operation of sub-section (3) out of the purview, in cases where the Service Tax has not been levied, paid, short-levied or short-paid by reason of fraud, collusion, wilful mis-statement, etc. But nevertheless, the Law does not treat all cases of fraud, collusion, wilful misstatement, suppression of facts, etc., alike. In the instant case the appellant immediately on being pointed out reversed credit and paid the tax along with interest which cannot be kept on a same footing with a person who has not paid tax ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sub-section (4) of Section 73, so as to keep the application of Section 73(3) out of the reach of the respondent-assessee. Hence, we do not think that the Commissioner (Appeals) and the CESTAT were wrong in deleting the penalty. Therefore, the appeal is dismissed. 18. Consequently, miscellaneous petitions if any pending in the appeal shall stand dismissed. There shall be no order as to costs." 5. The department is aggrieved and argues that once the fact that the assessee has availed ineligible CENVAT credit is proven, the penalty cannot be set aside merely on the ground that they have reversed the CENVAT Credit before issue of show-cause notice. The department relies on the judgement of the Hon'ble High court of Delhi in the case of Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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