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2017 (5) TMI 339 - CESTAT MUMBAIPenalty u/s 78 - Insurance Auxiliary Service - commission paid to agents - It was noticed that this service tax @ 10.30% was applicable up to 24/02/2009 and subsequently the tax liability was 12.36%. CERA audit team pointed out the short levy of the service tax due to wrong application of the percentage by the appellant for the period 24/02/2009 onwards - assessee discharged duty with interest on being pointed out - Held that: - the appellant had been filing service tax returns with the authorities and have also shown the amount of tax liability i.e. tax discharged by them. Wrong application of rate of service tax liability for the period 24/02/2009 cannot be held against them as an with intention to evade payment of tax as subsequently the appellant have discharged the service tax liability correctly at the application rate i.e. 12.26% - the lower authorities should not have issued any SCN to the appellant, who has discharged the service tax liability which was short-paid by them for the period 24/02/2009 to 28/02/2009 - penalty set aside - appeal allowed - decided in favor of assessee.
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