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2019 (12) TMI 554 - CESTAT HYDERABADClassification of services - Erection, Commissioning or Installation Service or not - construction of off shore well and modification of existing off shore well platform in Krishna-Godavari basin, besides some other construction services - HELD THAT:- The final order portion of Ld. Commissioner is contrary to her own findings in para 25 of the order. Therefore, we find that the sentence “The total amount of ₹ 25,78,46,297/- demanded above towards total service tax payable includes CENVAT Credit demanded amount of ₹ 1,20,09,077/- also” in para ‘v’ of the ORDER needs to be quashed as it is contrary to the findings of the adjudicating authority in para 25. Penalty - HELD THAT:- In terms of Section 78 of the Finance Act, 1994, the penalty imposable is equivalent to the amount of service tax not paid. Accordingly, in cases of wrong availment of CENVAT Credit, the amount of penalty imposable is also equivalent to the amount of CENVAT Credit wrongly availed. The adjudicating authority has no discretion of imposing a lesser penalty than what is mandatory, under Rule 15 of CCR, 2004 - the penalty under Rule 15 needs to be enhanced. Appeal disposed off.
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