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TMI Blog2019 (12) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Service Tax Appeal No. 2973/2011 - A/30613/2019 - Dated:- 17-9-2019 - HON BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) AND HON BLE MR. P. DINESHA, MEMBER (JUDICIAL) Shri L.V. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice dated 07.04.2010 was issued to the assessee demanding service tax of ₹ 25,78,46,297/- under proviso to section 73(1) of the Finance Act, 1994 along with interest under section 75 ibid. It was also proposed to impose penalty under sections 76, 77 78 of the Finance Act, 1994. In addition, the show cause notice also proposed to disallow CENVAT Credit of ₹ 1,20,09,077/- under Rule 14 of CCR 2004 read with section 11A of Central Excise Act, 1944 with proposal to charge interest and penalty under Rule 15 of CCR, 2004. 3. After following due process, by the impugned order, Ld. Commissioner confirmed the demands as proposed and imposed penalties. However, she held that the amount of irregularly availed C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut services may be increased to the mandatory penalty, equivalent to the amount of irregularly availed CENVAT Credit. 5. We have considered the arguments on behalf of the Department and perused the records. Para 25 of the impugned order reads as follows: In view of the above, I hold that the assessee are liable to pay an amount of ₹ 25,78,46,297/- towards service tax and Education Cess on the taxable services rendered under the category of Erection, Commissioning Installation Services under proviso to Section 73(1) of the Finance Act, 1994 along with interest under Section 75 ibid. Further, the assessee are also required to pay the irregularly taken and utilised CENVAT Credit of ₹ 1,20,09,07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raud, collusion, wilful mis-statement, suppression of facts, or contravention of any of the provisions of the Finance Act or of the rules made there under with intention to evade payment of service tax, then the provider of output service shall also be liable to pay penalty in terms of the provisions of Section 78 of the Finance Act. 10. 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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