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M/s. Schwing Stetter (India) Pvt. Ltd. Versus CCE, LTU, Chennai

2016 (6) TMI 239 - CESTAT CHENNAI

Short payment of Service tax in the month of July, 2011 due to the adjustment of service tax paid in excess in the month of May, 2011 - Erection and Commissioning, Maintenance and repair, BAS, GTA, Consulting Engineer, Sponsorship services etc. - Held that:- it is a well settled legal principle that the statue should be interpreted as it is even if the intention is imperfect, imprecise or there is an obvious omission. Even though the appellants have not specifically intimated the department in t .....

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s relied on by the appellants are squarely applicable to the facts of the present case. The excess amount paid in the month of May, 2011 adjusted by the appellants in the subsequent months tax liability is absolutely in order. Therefore, invoking Section 73(1) for a non-existing short payment is not sustainable. - Decided in favour of appellant with consequential relief - ST/41888/2015 - Final Order No. 40884 / 2016 - Dated:- 3-6-2016 - SHRI P.K. CHOUDHARY, JUDICIAL MEMBER For the Appellant : Sh .....

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13 was issued to the appellants proposing demand of service tax of ₹ 5,20,732/- along with interest under Section 73(1) of the Finance Act, 1994 and proposing imposition of penalty under Section 76 of the Finance Act, 1994. On adjudication, the adjudicating authority confirmed the demands and imposed penalty under Section 76 of the Act. Aggrieved by this order, the appellants were on appeal before the Ld. Commissioner (Appeals). The Ld. Commissioner (Appeals) rejected the appeal. Hence the .....

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July 2011 can also be accepted as succeeding to May, 2011 though not immediately succeeding month. He submits that in service tax, returns are submitted half yearly and these adjustments can be monitored only during the scrutiny of single return itself. Therefore, short payment in the month of July, 2011 is due to the adjustment of service tax paid in excess in the month of May, 2011. He submits that the short payment in the month of July, 2011 is illusory and not real and therefore Section 73( .....

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ds settled in favour of the appellants and is no longer res integra. 1. General Manager (CMTS) Vs. CCE, Chandigarh-2014 (36) STR 1084 (Tri.-De.) 2. Jubilant Organosys Ltd. Vs. CCE, Meerut-II-2014-TIOL-1870-CESTAT-DEL 3. M/s. Plantech Consultants Pvt. Ltd. Vs. CCE, Pune-2015-TIOL-2497-CESTAT-MUM 4. Garima Associates Vs. CCE, Chandrapur-2015 (40) STR 247 (Tri.-Mum.) He submits that in the case of Garima associates (supra), it has been held that intention of the Rule is very clear that whatsoever e .....

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held that the issue was no longer res integra and stands settled in favour of the appellants that the adjustment of service tax paid in excess towards the service tax liability of the subsequent months cannot be denied on technical grounds and hence penalty imposed is also not sustainable. He submits that as the excess amount of service tax paid in advance was adjusted in the tax liability of the subsequent months, no question of short payment arises and the demands are not sustainable. 3. The L .....

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ule 6 (1A) of the said Rules, the adjustment of excess payments can be made only in the succeeding month/quarter as the case may be. In the case on hand, excess amount paid in May was adjusted against the tax liability for the month of July, which is not in order and cannot be considered as payment of tax liability for the month of July. Hence the demands are sustainable. 4. Heard both sides and perused the records. The short issue to be decided is whether the appellant has short paid the servic .....

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