2019 (2) TMI 956

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....confirmed the demand of interest at applicable rate under Section 75 of the Finance Act and also imposed equal penalty under Section 78 of the Finance Act. 2. Briefly the facts of the present case are that the appellants are registered with the service tax for providing various output services like transport of goods by road; Management, Maintenance or Repair service; Business Support service; Management Consultant service; Technical Test and Analysis service, etc. The Audit Officers of Hyderabad Commissionerate during the course of audit took up scrutiny of service tax returns filed by the Hyderabad branch for the period April 2007 to March 2008 and observed that said unit has availed credit of service tax paid on "Construction Services....

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....office premises. As regards the demand of irregular availment of CENVAT credit to the tune of Rs. 44,31,957/-, the CESTAT remanded the matter to the original authority with a direction to the appellant to produce a worksheet along with documents supporting the claim for credit in ST-3 returns during the relevant period and the original authority was directed to verify and on direction of the Tribunal, the Commissioner in de novo proceedings confirmed the demand. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order confirming the demand is not sustainable in law. He further submitted that there is no irregular availment of CENVAT credit in CENVAT credit account mainta....

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....sheets enclosed thereby and the periodical returns were filed on 23.10.2007 for the period covering April to September 2007 and on 24.4.2008 in respect of the period from October 2007 to March 2008. The worksheets filed by the appellant along with ST-3 returns clearly disclose the invoice-wise details of the credit availed by the appellant and also provided the description of the service which was received by them. Hence, the department cannot allege suppression of facts with an intent to evade payment of taxes. In support of his submission, he relied upon the decision of the apex court in the case of Calcutta Discount Co. vs. ITO reported in 1961 (41) ITR 191 (SC) wherein it has been held that when all primary facts, inferences of facts an....

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....nalty does not arise. 5. On the other hand, the learned AR defended the impugned order and submitted that the appellants have suppressed the fact of availing the CENVAT credit which was detected during the course of audit and had audit not been conducted, it would have gone unnoticed. He further submitted that the appellants have not produced the documents on the basis of which they have availed the CENVAT credit and there was a mismatch between the ST-3 returns and the worksheets attached therein. In support of his submission, he relied upon the following decisions: • Enpro Oil Pvt. Ltd.: 2015 (38) STR 1038 (Tri.-Del.) • Jubiliant Enpro Pvt. Ltd.: 2015 (38) STR 625 (Tri.-Del.) • CCE vs. M/s. Peter ....