TMI Blog2020 (1) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... the ST-3 returns and that there is no evidence to the contrary to prove that credit has been willfully availed to defraud the Revenue - In the instant case, the SCN has not shown any positive evidence to prove wilful fraud or suppression to justify invocation of extended period of limitation. The appellant s case succeeds on limitation - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.76119 of 2014 - FINAL ORDER NO. 76932/2019 - Dated:- 4-12-2019 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER AND SHRI BIJAY KUMAR, TECHNICAL MEMBER Shri Jitin Singhal Shri Rupesh Kumar, both Advocates for the Appellant Shri S.Mukhopadhyay, Authorized Representative for the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability on which interest of ₹ 1,19,16,571/- has been demanded. After following the due process of law, the Ld. Commissioner adjudicated the SCN and confirmed the demand along with interest and also imposed penalty with the observation that the appellant intentionally availed wrong credit with intent to evade payment of service tax. 3. Shri Jitin Singhal Shri Rupesh Kumar, Advocates, appeared for the appellant and Sri S. Mukhopadhyay, Ld. Departmental Representative (DR) appeared for the Revenue. 4. The Ld. Advocate vehemently argued that there was no intention to avail irregular CENVAT credit and that as soon as it was pointed out to them,that the credit is not available, they reversed the credit of the balance am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the imposition of penalty. 5. On the contrary, the Ld. DR appearing for the Revenue submitted that the appellant is legally not entitled to credit and therefore the credit amount utilised by them for payment of service tax liability is liable to be recovered. He also submitted that the appellant is also liable to pay interest by placing reliance on the decision of Cipla Ltd vs. CCE [2019 TIOL HC MUM CX] and CCE vs. Vandana Vidyut Ltd [2016 (331) ELT 231 (Chhattisgarh)]. He prayed that the appeal be rejected being devoid of any merits. 6. Heard both sides and perused the appeal records. 7. We find that in the present case, since the credit amount is legally not eligible, the appellant is not contesting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of the input or input services, the non-disclosure of the same cannot attribute any mala fide to the assessee. The Hon'ble Gujarat High Court in the case of Prolite Engineering Co. v. Union of India 1990 taxmann.com 680 has observed that non-disclosure of information, which is not required to be disclosed or recorded by statutory provisions or prescribed proforma does not amount to suppression or concealment. By applying the ratio of the above decision, I hold the demand to be barred by limitation. Accordingly, assessee's appeals are allowed. 9. In view of the above discussions, we are of the considered view that the appellant s case succeeds on limitation. Thus, the impugned demand is set aside and the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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