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2021 (12) TMI 1014 - CESTAT KOLKATADropping of demand under Rule 6 of the CCR, 2004 - appeal against the option of reduced penalty of 25% given by the Ld.Commissioner (Appeals) - reversal of Rule 6 of CCR, 2004 on the abated value of Restaurant Services by taking the same as exempted services and applying 6% on the value of exempted services so determined to raise the demand of recovery of common Cenvat credit - HELD THAT:- The issue is no more res-integra in view of CBIC’s CIRCULAR NO 213/3/2019-Service Tax, dated July 05, 2019 wherein it has been clarified by the board that there is no requirement of reversal under Rule 6 of the CCR, 2004 for provision of restaurant services. Thus, the Revenue’s appeal to that extent is liable to be dismissed. Imposition of penalty on the amounts of Service Tax already paid by the Respondent during the course of audit before issuance of SCN - HELD THAT:- Both the lower authorities have erred in confirming the penalty as it is a settled principle that when tax is paid along with interest before issuance of SCN (other than cases of suppression or willful mis-statement), the Department cannot issue SCN in terms of section 73(3) of the Finance Act, 1994 - In the instant case of the Respondent, the Department has mechanically issued SCN alleging suppression of facts without according any reasons for such allegation. The appeal of the Revenue to the extent of imposition of penalty on the Respondent is also dismissed - The Departmental appeal is dismissed in entirety and the order of the first appellate authority is modified to the extent of deleting the imposition of penalty - decided against Revenue.
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