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2019 (2) TMI 1245 - CESTAT KOLKATAWrong availment of Cenvat credit - discrepancy in the figures shown in the ST-3 Returns as compared with the figures in the financial statement of the appellant - reverse charge mechanism - Held that:- The demand of the amount of ₹ 1,39,322/- arose out of calculation mistake in the year 2014-15, while deducting-commission paid of ₹ 49,434/-which has been inadvertently added twice (Table-II) and CENVAT Credit of ₹ 3,689/- and ₹ 10,883/- had been allowed less in the year 2013-14 and 2014-15, respectively, thereby causing demand of ₹ 1,39,322/- which is not payable by the appellant and the demand of ₹ 1,39,322/- is liable to be set aside - Further, Security Service charges under reverse charge mechanism, 75% of Service Tax on gross amount which should be ₹ 9,10,180/- and service tax arises thereon ₹ 1,12,500/- instead of ₹ 1,23,563/- as wrongly calculated by the Department which requires rectification in the demand. Under the above circumstances, no demand was payable by the appellant. Penalty - CENVAT Credit - common input service of “Security Agency Service” - providing the exempted service namely “Trading of Goods” and taxable service such as vehicle repairing service and business auxiliary service - Held that:- The element of mis-statement, suppression of facts etc. with an intent to evade payment for service tax. Accordingly the penalty imposed under Section 78 is liable to be set aside - penalty set aside. Appeal disposed off.
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