Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2012 (10) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2012 (10) TMI 726 - CESTAT, AHMEDABADNon payment of Service Tax - assessee claimed adjustment of amount paid in excess towards short payment - man power recruitment/supply agency services - demand of penalty u/s 76 - Held that:- Considering the Order of Commissioner in the case of M/s Jani (appellant assessee) Commissioner had allowed the adjustment of demand of Service Tax and interest thereon for the year 2005-2006 from the excess amount paid by them for the year 2006-2007. Otherwise, there is no need for mentioning the amount excess paid in the order portion if he has not allowed the adjustment of amount. Thus in the absence of any specific observation not allowing the adjustment, the obvious conclusion appears to be that the excess payment has been adjusted towards short payment and since the amount excess paid is more than ₹ 2 lakhs and the same happened in the very next year, the penalties that are imposed under Section 77, 78 and interest, can be said to have been adjusted in excess payment made by the appellant. Under these circumstances, there is no case for any further demand. Penalty under Section 76 of Finance Act, 1994 also cannot be imposed since the amount paid by the appellant is sufficient towards Service Tax liability. In the case of M/s Vishal (second appellant assessee), the Commissioner has totally ignored the excess payment in next two years and has considered only short payment. In the light of the fact that the facts in both the cases are same and the orders have been passed on the same day, differential treatment between the two appellants, in similar circumstances, cannot be sustained. Accordingly, by following the principles in the case of M/s Jani, the appeal filed by M/s Vishal is also to be allowed and for the same reason - appeal decided against revenue
|