TMI Blog2019 (5) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent in availing CENVAT credit. The department is free, while assessing returns, to call for further information and decide if there are errors/discrepancies. The mere fact that the break-up of the CENVAT credit availed was not given by the assessee cannot be held against them when the law does not require them to give this breakup. On the other hand, the conduct of the assessee as has been correctly recorded by the First Appellate Authority, in this case, does not indicate that they had any intention to evade payment of duty or to commit a fraud or had wilfully suppressed facts to evade payment of service tax. Penalty cannot be sustained - appeal dismissed - decided against Revenue. - Service Tax Appeal No. 30945 of 2018 - Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act 1994 and the amount already paid by them as interest has been adjusted towards recovery of the interest. On appeal, the First Appellate Authority has modified the order of the lower authority partially to the extent of setting aside the penalty imposed under Section 78(1) of the Finance Act 1994 read with Rule 15 of CENVAT Credit Rules 2004 holding that the element of fraud, collision, wilful mis-statement etc. are absent in the case. Revenue is aggrieved by this order of the First Appellate Authority and hence this appeal. 3. The case of the Revenue is that the payment was made by the appellant not voluntarily but on being pointed out by the department. Therefore, the same cannot be taken as voluntary payment. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent reiterates the findings of the first appellate authority. 4. I have considered the arguments of both sides and perused the records. It is not in dispute that the assessee has availed ineligible CENVAT credit on rent-a-cab services and event management services. The period involved was 2011-12 to September 2015. On being pointed out by the audit the appellant reversed the entire amount of credit along with applicable interest. The lower authority has also imposed a penalty which has been set aside by the First appellate authority which is the only point of contention. The First appellate authority has in para 16 has recorded as follows:- 16. From a plain reading of the above provisions of law, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation which has not been disputed by the lower authority. That being the case the lower authority holding that the appellant suppressed facts with the intent to evade payment of tax is wrong in law. My finding above on non-imposition of penalty when the tax along with interest have been paid with interest before issuance of show cause notice and non-imposition of penalty when the appellant co-operates with the investigation are fortified by the decisions of the Hon'ble High Court of Andhra Pradesh and Hori'ble High Court of Madras in the cases of CCE Vs Tirumala Fuels Ltd, reported in 2017(007) GSTL 142 (AP) and CCE Vs Chennai Port Trust reported in 2017 (005) GSTL 394 (MAS). The Hort'ble High Court or Andhra Pradesh held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee with the department to the extent that merely because service tax was paid or ineligible CENVAT credit was reversed prior to the show-cause notice, it does not absolve the assessee from the liability to penalty. The facts in each case have to be examined individually. The department s contention is that there was suppression of facts in this case. It is not in dispute that the assessee had regularly filed their ST-3 returns. The department s contention is that merely filing the returns is not sufficient but those returns should reflect the correct value of taxable services rendered which the respondent has not done in their case. They have not declared the details of CENVAT credit availed on different input services as the ST-3 returns d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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