Commissioner of CGST, Navi Mumbai Versus Jain Engineers Pvt. Ltd.
Service Tax
2019 (2) TMI 770 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 29-1-2019
APPEAL No. ST/88169/2018, ST/CO/86803/2018 – A/85235/2019
Service Tax
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 the case are that the respondent is engaged in providing taxable services under the category of 'construction of residential and commercial complex service' and during the relevant period 2004-05 to 2007-08, they have availed cenvat credit on the inputs used in providing output service and also claimed benefit of Notification No.1/2006-ST dated 1.3.2006. During the course of audit in the yea
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peal. 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 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 Rs. 1.80 lakhs with interest of Rs. 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 78 has been rightly invoked and penalty imposed by the adjudicating authority.
4. Learned Chartered Accountant for the respondent has submitted that since under a bona
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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 audit. On discharging the said liability, the audit para has been closed. In support, the respondent placed a formal audit report issued by the 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
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