Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs M/S. Padmashri Dr. V.V. Patil Ssk Ltd on 26 November, 2014
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No.
E/1040/09
- Mum
(Arising out Order-in-Appeal No. AGS (129)01/2009 dated 25.06.2009 passed by the Commissioner of Central Excise (Appeals), Aurangabad)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Commissioner of Central Excise, Aurangabad
Appellant
Vs.
M/s. Padmashri Dr. V.V. Patil SSK Ltd.
Respondent
Appearance:
Shri Ashutosh Nath, AC(AR) for the appellant None for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Date of hearing : 26-11-2014 Date of decision : 26-11-2014 O R D E R No:..
The Revenue is in appeal against the impugned order wherein the ld. Commissioner (Appeals) has dropped the penalty imposed by the Adjudicating Authority on the respondent.
2. Heard the ld. AR and perused the record.
3. None appeared on behalf of the respondent. Request has been made for adjournment on the matter but after hearing the matter, I find that the appeal can be disposed of. Therefore, appeal is taken up for disposal.
4. The brief facts of the case are that the respondent paid service tax by GR-7 challan on Manpower Recruitment Agency Service and took credit of the same in his books. Revenue is of the view that the respondent is not entitled to take Cenvat credit of the service tax paid by them. Therefore, matter was pointed out to the respondent who reversed the Cenvat credit taken on the input service. Thereafter proceedings were initiated against the respondent for appropriation of the reversal of input service credit along with interest and imposition of penalty under Rule 15 of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. The Adjudicating Authority appropriated the reversal of Cenvat credit and also imposed penalty on the respondent. On appeal, the penalty was dropped by the Commissioner (Appeals). Against the said order, Revenue is in appeal before me.
5. The contention of the ld. AR is that as per Rule 9 of the CENVAT Credit Rules, 2004, the respondent was not entitled to take suo Cenvat credit of the service tax paid by them under the category of Manpower Recruitment Agency Service. Therefore, the said amount was required to be reversed along with interest and penalty was imposable on him and the Adjudicating Authority has rightly imposed penalty on the respondent. In these circumstances, impugned order is required to be set aside.
6. I have gone through the facts of the case and observed that in this case the respondent has paid the service tax and taken suo motu credit. Although the respondent has committed an error, which was rectified immediately on pointing out by the department, therefore, it cannot be said that the respondent was having any malafide intention to avail inadmissible credit. Moreover, during the argument, the ld. AR submits that the amount of service tax paid by the respondent has already been refunded. This also supports the fact that there was no intention of the respondent to take inadmissible credit. In these circumstances, the Commissioner (Appeals) has rightly dropped the penalty against the respondent. Therefore, I do not find any infirmity in the impugned order, same is upheld and appeal filed by the Revenue is dismissed.
(Dictated in Court) (Ashok Jindal) Member (Judicial) //SR 3