2016 (6) TMI 399

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....Service Tax. The appellants availed credit for excise duty on inputs and capital goods and service tax paid on the input services. In the course of audit, it was noticed that appellants have availed credit for service tax paid in relation to Rent-a-cab service, outward freight service, courier service and hospital service. The details of credit availed and the period is available at pages 54 & 55 of the appeal paper book and internal page 3 & 4 of the OIO. Period of dispute involved in this appeal is from December 2010 to November 2011. SCN was issued on 27.5.2014 and the adjudicating authority vide para 13.6 of the OIO dt. 31.12.2014 allowed the credit availed on courier service and held that service tax paid on Rent-a-cab service, GTA on ....

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....tion of the rules. He further submits that since all the details were available in the statutory records, there was neither intent to evade payment of duty nor suppression of facts. Ld. counsel very strongly mentions that on being pointed about the ineligible credit of the service tax paid, appellant immediately reversed the cenvat credit and also paid the appropriate interest amounting to Rs. 28,063/- in cash and submits that appellants are not disputing the demand of duty and interest in both the appeals and are only pleading for waiver of penalty imposed. In support of his submissions, he relied on the following citations :- (i) Commissioner Vs Dynamic Industries Ltd. - 2014 (307) ELT 15 (Guj.) (ii) Nectar Lifesciences Ltd. Vs CCE Ch....

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....tial demand and interest. The only prayer of appellant in both the appeals is for waiver of penalties. I find that there is no suppression of facts as suppression is a finding which would presuppose non disclosure and there has been no withholding of information in the instant case. A mere failure to disclose certain facts to the department would not result in willful suppression of facts as decided by the Honble Supreme Court on various occasions and in particular in the case of Pahwa Chemicals Pvt. Ltd. Vs- CCE 2005 (189) ELT 257 (SC). It was held by the Hon'ble Supreme Court in the above case that mere failure to declare does not amount to willful mis-declaration or willful suppression. There must be some positive act on the part of the....