9911796707
TMI Blog2015 (6) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... ion service. As there was a Circular No. 97/08/2007 dated 23.08.2007 which directs that on output transportation service the service tax is to be paid in cash. But, the appellant utilized cenvat credit account for payment of the service tax, therefore, proceedings were initiated against the appellant and the adjudicating authority directed the appellant to pay service tax in cash. Against the said order, the appellant filed an appeal before the Ld. Commissioner (Appeals) who directed to make a pre-deposit of the entire amount of service tax in dispute in cash which appellant complied with on 29.08.2011 and thereafter immediately he has taken the suo moto credit on 30.06.2011 of the service tax paid through cenvat credit account. Thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prayed that issue is no more res integra and impugned order be set aside. 4. On the other hand, Ld. AR opposed the contention of the Ld. Counsel and submits that as per CBEC circular no. 97/8/2007, it is a cleared mandate that for output transportation service, service tax is payble in cash. Therefore, the appellant required to pay service tax in cash. Further, in compliance the direction or the Ld. Commissioner (Appeals), they have paid the service tax in cash. But they have gone one step further by taking suo moto credit which was the subject matter at that time. Therefore, show cause notice required to be issued for taking suo moto credit by the appellant. She also submits that issue has been examined by the Ld. Commissioner in detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix constructed about that soon after getting OIA dated 27.11.2012 the appellants' should have paid back the re-credit taken suo moto and filed proper refund claim or filed appeal against the OIA. For the Department also there was no need to issue another show cause notice but should have recovered the amount. On merit also, the action of appellant in re-crediting of amount after paying the GTA service tax in cash in compliance with stay order othe Commissioner (Appeal) was wrong and legally incorrect. The stay order only directed the appellants to pay in cash and did not permit re-credit of an equal amount. Therefore, the appeal cannot succeed, hence rejected. 5. She, further submits that the case was relied upon by the appellant are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice or not. 8. The said issue came up before this Tribunal in the case of Esdee Paints Ltd. (supra) wherein this Tribunal has observed as under: Admittedly during the relevant period the appellant paid the service tax by utilizing the credit. When such credit utilization was objected to by the Revenue, they paid the tax in cash and reversed the entries made in the credit account. In fact such reversal of entries amounts to correction of entries and not refund of the tax already paid. With the payment of service in cash, the debit entries already made in credit account for payment of service tax were required to be reversed. To be just and fair, Revenue should have on its own allowed such correction of entries, when the appellant paid the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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