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2021 (8) TMI 1119 - AT - Service TaxRecovery of excess amount collected as service tax - Recoveries to be made u/s 73 or 73A - document for computation of demand of service tax - Form 26-AS or Balance Sheet? - extended period of limitation - penalty - Whether the excess recovery of the service tax can be recovered under Section 73 of the Finance Act, 1994 or Section 73-A of the Finance Act, 1994? - HELD THAT:- If any amount is collected more than the actuals, the said amount is recoverable from the assessee under Section 73-A of the Act. Although show cause notice invoked the provisions of Section 73-A of the Act, but the adjudicating authority has not invoked the provisions of Section 73-A of the Act and the said findings of the adjudicating authority have not been challenged by either of the side before any appellate authority - the confirmation of the excess amount recovered by the appellant cannot be demanded under Section 73 of the Act. Therefore, the demand confirmed under Section 73 of the Act excess recoveries made by the appellant on account of service tax cannot be demanded under Section 73 of the Act. Which figures are to be taken for computation of demand of service tax, (a) Form 26-AS or (b) Balance Sheet? - HELD THAT:- Balance sheets figures records all the transactions done by the appellant by way of issuing invoices and receipts amounts thereof and the said Balance sheets have been certified by the Chartered Accountant. In that circumstance, figures of the balance sheets are more authenticate to compute the service tax recoverable from the appellant. But the adjudicating authority chose the figures whichever is higher comfortable to him/her which is not correct. As balance sheets’ figures are certified by the Chartered Accountant and the same are more authentic figures, therefore, the service tax demand is to be computed on the basis of balance sheets figures - impugned order qua computation on the basis of balance sheets needs examination at the end of the adjudicating authority. Whether extended period of limitation is invokable in the facts and circumstances of the case or not? - HELD THAT:- In this case, extended period of limitation is not invokable as it is a case of availment of benefit of Notification No. 30/2012-ST dt. 20.06.2012 and computation of taxable turnover and no fact has been suppressed by the appellant from the respondent. The activity as well as payment of service tax were in the knowledge of the department, therefore, in the absence of any malafides on the part of the appellant, extended period of limitation is not invokable - any demand pertaining to extended period of limitation is set aside. Whether the penalty can be imposed on the appellant or not? - HELD THAT:- As extended period of limitation is not invokable, therefore, no penalty is imposable on the appellant. Appeal disposed off.
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