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2019 (2) TMI 21 - CESTAT MUMBAIPenalty u/s 77 and 78 of the Finance Act read with 15(3) of Cenvat Credit Rules - short payment of service tax - appellant already paid the said tax along with interest - requirement to issue SCN - appellant was not issued with show-cause under section 73(1) of the Finance Act - Held that:- Though admissibility or inadmissibility of the credit in respect of renting of immovable property and business support service is a mixed question of fact and law, the same requires no discussion here in view of admission by the respondent except to the extent that there is a difference between compliance of audit report and discharge of duty liability in respect of imposition of tax as per Section 265 of the Constitution of India. Moreover, appellant was given a written promise before commencement of Audit that if any discrepancy in the audit is pointed out and the same is complied with, no further litigation would ensue. When show-cause does not contain the rule violated by the respondent while proposing penalty which Commissioner (Appeals) found from the factual aspect of the case to have been covered under Section 73(2) and held that in such an event proceeding is to be concluded under section 73(3), there is nothing left before this court to interfere with the finding of the Commissioner (Appeals). Penalty u/s 77 of FA - Held that:- A reading of Section 70 of the Finance Act would take any prudent man to conclude that such a finding made by the Commissioner (Appeals) is not erroneous and therefore his order setting aside penalty under section 77 of the Finance Act needs no interference in view of the fact that audit was conducted on the basis of production of books of account and other documents. Appeal dismissed - decided against Revenue.
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