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2016 (8) TMI 42 - CESTAT BANGALORE

2016 (8) TMI 42 - CESTAT BANGALORE - 2016 (45) S.T.R. 214 (Tri. - Bang.) - Demand on interest on delayed payment of service tax - period of limitation - they were paying service tax under provisional assessment as per Rule 6(4) of Service Tax Rules, 1994 - Held that:- During the disputed period, the appellant has deposited more service tax than provisional assessment. But still it was less than the actual liability and further, interest cannot be demanded under Section 75 of Finance Act, 1994, b .....

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Member Shri S. Ananthan, C.A. For the Appellant Shri Pakshi Rajan, A.R. For the Respondent ORDER The present appeal is directed against the Order-in-Appeal No. JMJ/31/2011 dated 24.8.2011, vide which the Commissioner (Appeals) has upheld the Order-in-Original No. 69/2010 LTU dated 29.10.2010, passed by the Assistant Commissioner (LTU) and dismissed the appeal of the appellant. 2. Briefly, the facts of the present case are that the appellant is holder of Service Tax registration and is providing .....

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s short payment of tax by the appellant while comparing to actual liability. Show-Cause Notice dated 14.5.2010 was issued on the appellant for period from September 2006 to June 2007 requiring the appellant to show cause why interest amounting to ₹ 1,11,318/- could not be demanded under the provisions of Section 75 of Finance Act, 1994. The show-cause notice was contested by the appellant on merits as well as on limitation but the Assistant Commissioner vide Order-in-Original dated 29.10.2 .....

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nt Commissioner. He also submitted that vide this order dated 3.5.2005, the appellant - bank was permitted to pay tax amount of ₹ 4.50 crores on provisional basis monthly. The second contention of the learned C.A. is that the show-cause notice is beyond limitation. He further submitted that findings of the learned Commissioner (Appeals) holding that the appellant was not under provisional assessment during the period under dispute is wrong. He further submitted that the provisional assessm .....

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crores per month during the relevant period. During the months of September 2006, November 2006, March 2007 and June 2007, there was short payment of tax but the show-cause notice was issued on 14.5.2010 which is beyond the period of limitation. He also submitted that the show-cause notice was issued after more than one year from the relevant date without invoking the extended period of limitation. 4. On the other hand, learned A.R. reiterated the findings of the Commissioner (Appeals) and submi .....

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d to pay service tax provisionally on a monthly basis from April 2005 by a letter issued by the Department and the appellant was required to deposit a sum of ₹ 4.5 crores monthly. This facility was given to the appellant as per Rule 6(4) of Service Tax Rules, 1994 which is reproduced herein below : Rule 6(4) : Where an assessee is, for any reason, unable to correctly estimate, on the date of deposit, the actual amount payable for any particular month or quarter, as the case may be, he may .....

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e Rules, 2002,] relating to provisional assessment, except so far as they relate to execution of bond, shall, so far as may be, apply to such assessment. Further, I also find that during the disputed period, the appellant has deposited more service tax than provisional assessment. But still it was less than the actual liability and further, interest cannot be demanded under Section 75 of Finance Act, 1994, because the appellant is not liable to pay interest in accordance with the provisions of S .....

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