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2013 (12) TMI 325 - AT - Service TaxAvailment of CENVAT Credit - Utilization of service of transportation for outward transportation of goods from their factory - Assessee paid service tax by debit in their entry in the Cenvat account - Whether service was an output service - Held that:- This is an issue on which there is no clear provision under the Rules. But considering the overall scheme of the Cenvat Credit Rules, I am of the view that the provisions that are applicable on the date of payment would apply. Therefore, I do not give any relief in the matter of duty demanded. However, on payment of such amount in PLA along with the interest, they are allowed to take credit of the Cenvat credit utilized for the purpose on 28-11-2008. The appellate authority has come to the conclusion that there was no mala fide intention on the part of appellants but he has not given full waiver of penalty. This is not justified. Once Section 80 of Finance Act, 1994 is invoked, full waiver from penalty is to be given and not just partial relief. This is the legal point raised in the appeal by Revenue. But the legal point is to be resolved by giving full relief from penalty rather than increasing penalty. There is no case for sending the order for de novo consideration - Penalty set aside - Decided partly in favour of assessee.
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