Case Law Details
Aswani Industries Pvt Ltd Vs C.C.E. & S.T. (CESTAT Ahmedabad)
CESTAT find that since there is no intention of the appellant to evade any duty as the appellant have discharged the service tax and utilized the same though incorrectly but it was a revenue neutral situation as the appellant is otherwise entitled for the refund of the same amount. Hence, in absence of any mala fide penalty under section 78 is not imposable. Therefore, the penalty imposed under section 78 is set aside.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
The brief facts of the case are that the appellant have discharged the service tax liability under reverse charge mechanism on 13.07.2017 vide challan in the month of June, 2017. The appellant have claimed cenvat credit shown in the return of June, 2017 and the same was utilized for payment of duty in the month of June, 2017. The case of the department is that since the appellant have paid the service tax on reverse charge mechanism on 13.07.2017, the same was not available as cenvat credit as on 30.06.2017. Therefore the said credit could not have been adjusted towards the payment of duty for the month of June, 2017. Accordingly, the show cause notice was issued and the same was adjudicated by the Adjudicating Authority whereby the demand of cenvat credit was confirmed along with demand of interest and equal penalty. Being aggrieved by the Order-In-Original the appellant filed the appeal before the Commissioner (Appeals) who vide Order-In-Appeal upheld the Order-In-Original and rejected the appeal. Therefore, the present appeal filed by the appellant before this Tribunal.
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