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2014 (12) TMI 741 - CESTAT MUMBAIImproper adjustment of wrongly paid service tax paid against the subsequent liability instead of claiming refund - Penalty u/s 76, 77 & 78 - Business Auxiliary Service - Held that:- It is not in dispute that the service tax law does not provide for adjustment of excess tax paid against the subsequent liability except in certain specified situations and the present case does not involve those specified situations. Therefore, suo motu adjustment of excess tax paid would not arise in the present case. However, it is on record that the appellant intimated and informed the department of the excess service tax paid and suo motu adjustment towards their liability on 24.4.2006 and thus the department was aware of the suo motu adjustment on 24.4.2006. However, the department has chosen to issue the Show Cause Notice only on 21.12.2009, i.e., after a gap of three and a half years. Under these circumstances, the appellant has made out a prima facie case for wavier of pre-deposit of the dues on account of time bar. Accordingly, we grant unconditional waiver from pre-deposit and stay of recovery of the dues adjudged vide the impugned order during the pendency of the appeal - Stay granted.
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