TMI Blog2019 (5) TMI 1409X X X X Extracts X X X X X X X X Extracts X X X X ..... BHARAT SANCHAR NIGAM LIMITED VERSUS CCE, RAIPUR AND VICE-VERSA [ 2014 (6) TMI 768 - CESTAT NEW DELHI] and in the case of M/S. THE GENERAL MANAGER, TELECOM, BSNL VERSUS CCE, RAIPUR [ 2014 (10) TMI 419 - CESTAT NEW DELHI] and in the case of BSNL VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH [ 2011 (7) TMI 946 - CESTAT, NEW DELHI] have allowed adjustment of excess Service Tax paid against short payment of Service Tax. Applicable rate of tax - HELD THAT:- The services were provided by the Appellant during 10/2000 to 13-05-2003 when the rate of tax was 5% whereas, the value of taxable services were received during 14-05-2003 to 03/2004 when the rate of tax was 8%. It is well settled that the rate of tax shall be the rate as applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposing penalties U/s. 76 and 78 of the Finance Act,1994. By adjudication order dated 29-03-2007 the Ld. Commissioner confirmed Service Tax demand of ₹ 1,14,12,210/- along with interest and imposed penalty of ₹ 100/- per day U/s 76 and penalty U/s. 78 of ₹ 1,14,12,210/-. The Appellant, being aggrieved filed an Appeal before this Tribunal. This Tribunal vide Final Order dated 25-09-2008 bearing No. M-272-273/S-790-791/A-967- 968/KOL/2008, set aside the adjudication order dated 29-03-2007 and remanded the matter back to the adjudicating authority for adjudication afresh, after taking into account the details of exempted services provided by the Appellant, with liberty to raise any legal issue including the issue of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort payments of Service Tax and the months in which advance/excess Service Tax is paid are outside the scope of the Show Cause Notice. The Ld. Advocate submitted that in their reply to the Show Cause Notice vide letter dated 10-03-2006 (paragraph 3), submitted in the first round and also in their Written Submission dated 05-11-2008 (submitted on 10-11-2008) (paragraph 2.6), in the second round, they have taken specific contentions for adjustment of excess Service Tax in some months against short payment of Service Tax in subsequent months as they were not able to correctly estimate their Service Tax liability and to be on the safer side they used to pay Service Tax provisionally which were never less than the Service Tax actually payable by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .). 4. The Ld. D.R. submitted that the earlier Order-in-Original dated 30-03-2007, though holds that there was no short payment of Service Tax but the issues in the said adjudication order and the impugned Order are different inasmuch as in the earlier adjudication order, the issue was relating to depositing of Service Tax through book transfer whereas the dispute in the instant case relates to short payment of Service Tax in some months, though for the self same period. 5. Heard both the sides and perused the appeal records. 6. We find that the Appellant has paid Service Tax of ₹ 77,56,170.69/- in excess in some months during 10/2000 to 03/2004 as they were not able to estimate their co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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