2019 (2) TMI 770 – CESTAT MUMBAI – TMI – Construction services – construction of residential and commercial complex service – period 2004-05 to 2007-08 – benefit of N/N. 1/2006-ST dated 1.3.2006 – cenvat credit as well as abatement, which they have reversed on 14.12.2009 after being pointed out by the department during the course of the audit – Held that:- 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 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
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nother audit was conducted late in the year 2010 for the subsequent period, whereunder even though they have not availed cenvat credit on inputs relating to the project, where the benefit of abatement under Notification No.1/2006-ST dated 1.3.2006 was availed, but on being objected by the audit team of the department, they paid the abatement amount of ₹ 1.80 lakhs along with interest of ₹ 53,121/-. Later, a show cause notice was issued on 8.1.2013 to the respondent proposing penalty and appropriation of the amount already paid. The adjudicating authority confirmed both the amounts and imposed penalty under Section 76 as well as Section 78 of the Finance Act, 1994. Aggrieved by the said order, the respondent filed appeal before the learned Commissioner (Appeals) who, in turn, allowed their appeal. Hence, the Revenue is in appeal. 3. Learned AR for the Revenue has submitted that the respondent has been a repeated offender inasmuch as for the period 2004-05 to 2007-08, they wr
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d by them in the year 2009. For the subsequent period, they had not availed cenvat credit while claiming abatement under Notification No.1/2006-ST dated 1.3.2006 for certain projects, but availed cenvat credit where abatement was not claimed for other projects. However, to avoid litigation, they paid the entire amount of service tax abatement claimed with interest in the year 2012 on being pointed out in the second audit. Thus, it is incorrect to allege that they have contravened the provisions repeatedly and accordingly, penalty is imposable under the provisions of the Finance Act, 1994. 5. Heard both sides and perused the records. 6. I have carefully considered the submissions advanced by both sides. In the reply to the show cause notice, the respondent has categorically submitted the circumstances under which initially, they have availed both cenvat credit as well as abatement, which they have reversed on 14.12.2009 after being pointed out by the department during the course of the
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