TMI Blog2012 (10) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... amount. Thus in the absence of any specific observation not allowing the adjustment, the obvious conclusion appears to be that the excess payment has been adjusted towards short payment and since the amount excess paid is more than ₹ 2 lakhs and the same happened in the very next year, the penalties that are imposed under Section 77, 78 and interest, can be said to have been adjusted in excess payment made by the appellant. Under these circumstances, there is no case for any further demand. Penalty under Section 76 of Finance Act, 1994 also cannot be imposed since the amount paid by the appellant is sufficient towards Service Tax liability. In the case of M/s Vishal (second appellant assessee), the Commissioner has totally ignored ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Revenue is now in appeal on the ground that the penalty under Section 76 of Finance Act, 1994 should have been imposed. 3. Heard both sides. 4. Ld. Advocate submitted that in respect of both these appellants, the Commissioner called for a report from the Assistant Commissioner and the Assistant Commissioner, in turn, obtained report from the range Superintendent. The reports have not been questioned and accepted and the impugned orders have been passed on the basis of reports. In the case of M/s Vishal, the report of range Superintendent indicated that the appellant had paid the amount which is ₹ 1,65,626/- short during the year 2005-2006, but had paid excess amounts of ₹ 2,63,532/- in the year 2006-2007 and ₹ 88, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the reports have been called for and received and relied upon. It is his submission that the appellant is not liable to pay any amount and in the absence of any dues from the appellant, there cannot be any penalty under any Section since there is no liability at all. However, he fairly admits that the penalty under Section 77 of Finance Act, 1994 could be imposable. 6. Ld. A.R., on the other hand, would submit that there is no provision for adjustment of excess payment made subsequently for short payment made in the earlier year. The proper course for M/s Vishal and M/s Jani was/is to file refund claim for the excess payment made and pay the short recovery by making payment in cash. Therefore, the demand is sustainable and since there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to claim the same. In the circumstances of the case, since the amount short paid was adjusted by the Commissioner by excess payment next year, it can be said to be the case covered by the provisions of Section 73 of Finance Act, 1994 and therefore the penalty under Section 76 of Finance Act, 1994 also cannot be imposed since the amount paid by the appellant is sufficient towards Service Tax liability. 9. In the case of M/s Vishal, the Commissioner has totally ignored the excess payment in next two years and has considered only short payment. In the light of the fact that the facts in both the cases are same and the orders have been passed on the same day, differential treatment between the two appellants, in similar circumstances, cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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