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2019 (1) TMI 1042 - AT - Service TaxPenalty u/s 78 of FA - non-payment of service tax - management, maintenance and repair service - erection, commissioning and installation service - CENVAT credit - Held that:- Insufficiency of credit may, at a stretch, be ground for ordering recovery of non-appropriated portion of confirmed amount. It is beyond the sanction of law to decide on availment of CENVAT credit without a notice, proposing to deny and without disclosing intent to order recovery, based on the facts available at the time of issue. That which is beyond the competence of the original authority is not amenable to appellate jurisdiction on the merit of liability. Penalty u/s 78 - Held that:- From the manner in which the adjudicating authority has arrived at its conclusions, we are unable to ascertain if the ingredients of section 78 are apparent in the matter of inadequacy of credit or in the failure to discharge service tax upon the rendering of the taxable service - The grounds of appeal appear to focus on the legality and propriety of the course of action adopted by appellant and in the plea for relief it is claimed that interpretation of rule 3(4) of CENVAT Credit Rules, 2004 erases the scope for invoking the provision - penalty not warranted. We set aside the impugned order to enable fresh adjudication. We also adjure the original authority to restrict the proceedings to the show cause notice - appeal allowed by way of remand.
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