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2023 (8) TMI 744 - AT - Service TaxShort payment of service tax on works contract service - challans were not in the name of the assessee- appellant - amount inadvertently paid in the partnership firm, however there is no liability of service tax in that firm - demand alongwith interest and penalty - HELD THAT:- The mistake of submitting the challans in different service tax registration which pertained to the partnership firm was a bonafide mistake. The appellant, namely Uday Raj Singh is having proprietorship firm in the name of Uday Raj Singh having STC code CATOS1091NSD001 whereas Uday Raj Singh is also having partnership firm as M/s Uday Raj Singh with different STC Code AADFU9316JSD001. The submission of the appellant that he had inadvertently paid the service tax in the code of partnership firm merely because, the name and the address is the same. He has duly accepted this even before the issuance of show cause notice vide his letter dated 29.11.2018. In fact, it was a case where the Department should not have even proceeded to issue the show cause notice and in terms of the circular should sorted the issue at that stage itself. As the partnership firm has no service tax liability and the service tax amount in terms of the show cause notice was already deposited with the Government exchequer, it was not a case of tax evasion. From the contents of the Circular No. 58/7/2023 (F. No. 157/2/2003 CX.4) dated 20.05.2003, it is clear that it refers to the payment of service tax under a wrong accounting code wrong STC Code/ Central Excise registration number and in that event it has been clarified that the assessee shall not be asked to pay the service tax again. In fact on the basic principle, the Government is not entitle to retain that amount, which is liable to be refunded, but unfortunately the application for refund of the appellant has been rejected as being time barred. The adjustment of the amount, which is already with the Revenue is allowed and the present show cause notice is dropped - no penalty under Section 78 of the Act or under Section 77(2) of the Act is leviable on the appellant and also no interest under Section 75 of the Act can be levied - appeal allowed.
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