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2015 (11) TMI 52 - AT - Service TaxPenalty u/s 78 - Adjustment of excess payment of service tax with penalty - Whether the adjudicating authority holding imposition of penalty of 25% of the penalty (50% of service tax amount) is correct and legal - Held that:- in the adjudication order the adjudicating authority has by mistake stated that 25% of the penalty (50% of the Service tax amount) whereas it is observed that there is no such provision under any statute for imposition of penalty of 25% of the penalty amount. - It is seen that against Revenue’s claim of ₹ 32,63,189/- the assessee has paid total amount of ₹ 35,33,189/- which is much higher than amount required to be paid. Only point is that assessee has paid excess amount of Service tax which in my considered view should be considered and adjusted against the short payment of penalty. However, Ld. Counsel has fairly agreed that they under take not to claim any refund if any amount found to be paid in excess. In view of the above position, I agree with the contention of the Ld. Counsel that the assessee has paid excess amount in to as compared to total amount required to be paid as per the revenue. Therefore, I do not find any reason to demand any further amount form the assessee. - Appeal disposed of.
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