TaxTMI 
TaxTMI 
2018 (8) TMI 1737
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....nder Section 65(105) of the Finance Act, 1994. M/s. ABB avail and utilize cenvat credit of duty paid on various inputs as well as capital goods and service tax paid on various input services. M/s. ABB, apart from the activities of manufacturing and providing taxable output service, are also engaged in trading activity and avail cenvat credits on certain common input services that are used for their trading activity also. On the allegations inter alia that the appellant was not eligible to avail the facility of service tax on input services; that the appellant had not satisfied Rule 2(l) of Cenvat Credit Rules 2004; that the appellant had neither followed the procedure as per Rule 6(2) or Rule 6(3) of Cenvat Credit Rules by not mainta....
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....ngaged in manufacture of excisable goods and in provision of taxable services, etc. 2. After considering the explanations and the arguments during the course of personal hearing, the adjudicating authority vide Order-in-Original dated 07.08.2015 confirmed the proposals made in the show-cause notice against which the appellant preferred an appeal before the Commissioner Central Tax (Appeals-II), Bangalore, who vide Order-in-Appeal No. 135/2018 dated 13.02.2018 allowed the appeal in part. The learned Commissioner (Appeals) while confirming the demands, reduced the penalty of Rs. 8,32,482/- (Rupees Eight Lakhs Thirty Two Thousand Four Hundred and Eighty Two only) to Rs. 85,000/- (Rupees Eighty Five Thousand only) under Rule 15(1) of the....
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....t the appellant having paid the amount, did not contest the same. 6. I find from paragraph 10 of the impugned order that there is a categorical finding as to the fact that the appellant not seeking any refund of the proportionate credit reversed and the finding of the learned Commissioner (Appeals) is that the appellant was not disputing the fact that it was required to reverse proportionate credit on trading activities. From this I do not find, as contended by the learned DR, that the appellant had given up its claim on merits or on limitation. Be that as it may, I find from the order of this Bench in the appellant's own case (supra) wherein it has been held that: "11. After considering the submissions of both the parties and peru....
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....d accordingly. 7. It must also be mentioned that as there is no suppression, penalty cannot be imposed. 12. Further the Hon'ble Apex Court in the case of Nizam Sugar Factory (supra), on an identical issue, has observed in para 9 as under:- 9. Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgments and respectfully following the same, hold that th....