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2009 (2) TMI 375 - CESTAT, CHENNAIDemand and Penalty- The original authority had confirm the demand of service tax along with interest and penalties on the assessee on the ground there was short payment of service tax and education cess. He further held that so far as the assessee’s contention was concerned that there had been excess payment of service tax during April 2005 to September, 2005 and in October, 2005 and that the said excess payment was adjusted against the service tax payable from November, 2005 to March, 2006, the assessee had not made any claim in that regard to the department and it was only after the issue of the notice, that the above reason was given as defence for adjustment of the short payment. The Commissioner (Appeals) directed for pre-deposits of the entire service tax demand and 50 percent of the penalties imposed. In the light of the decision of A.C. Nielsen ORG. Marg (P.) Ltd. v. CCE, in which the tribunal held a contrary view. The rule 6(3) of the Service Tax Rules, 1994 provides for adjustment of tax paid in respect of taxable service not provided by an assessee towards its subsequent tax liability on returning the tax collected to the clients. However, in view of divergent views held in different decision of the Tribunal cited by the parties. It was appropriate and necessary that the Commissioner (Appeals) without insisting on any pre-deposits of the dues adjusted against the assessee.
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