TMI Blog2023 (2) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clear that the discrepancy such as payment of service tax under wrong registration can be adjusted against the correct registration for which the service tax is actually due. In the present case even though the service tax was paid under the registration of head office Mumbai but the appellants Anjar unit as well as their Mumbai head office is one single entity. Accordingly, in the light of the above circular the department could have made the necessary adjustment instead of raising the demand twice on the appellant. The issue has been well settled in many cases. Reliance may be placed in the case of M/S. WESTERN COALFIELDS LTD VERSUS COMMISSIONER OF EXCISE SERVICE TAX [ 2019 (4) TMI 1075 - CESTAT MUMBAI] where it was held that As long as the duty is paid and credited duly to the Govt. of India account, procedural infractions which are curable in nature will not nullify such payments. Demanding such duty second time is certainly harsh and has no sanction of law, more so along with interest and penalty. From the above judgments and board circular cited it is settled that merely because the service tax paid under different registration but by the same company, cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the Anjar Unit. Therefore, no demand exists. He placed reliance on the following judgments: Devang Paper Mills Pvt Ltd vs. UOI - SCA no. 12264 of 2015 Commissioner of C. Ex ST, Bhopal Vs. KK. Kedia 2014 (35) STR 383 (Tri. Del.) M/s. Neyveli Lignite Corporation Ltd vs. Commissioner of GST central Excise , Trichy [ MANU/CC?0022/2018] M/s. Sahara India TV Network vs. CCE ST, Noida - 2016 (41) STR 145 (Tri. Del). M/s. Western Coalfields Ltd vs. Commissioner of Excise Service Tax 2019 (4) TMI 1075 CESTAT Mumbai. Auro pumps Pvt Ltd vs. UOI- 2017 (7) TMI 24 (Guj. HC) M/s Falah Steel vs. UOI - 2016 (6) TMI 924 (Guj. HC) 3. Shri Dinesh Prithiani, Learned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the record. We find that in the present case the demand was confirmed only for the reason that the appellant at their Anjar unit had not paid the service tax on services received from abroad on reverse charge basis. However, there is no dispute as the same was admitted in the show cause notice as well as in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the STC number of another assessee/same assessee s (having multiple registrations) different registration number. 4. Service Tax has been paid against Central Excise Registration number of the assessee instead of Service Tax Code Number or vice versa (major heads-Customs-037, Central Excise-038 and Service Tax-044). 5. Service Tax has been paid against cancelled/surrendered registrations on obtaining centralized registration. In such instances, in order to ensure uniformity and to avoid hardships to the assessees, the following procedure is prescribed to be followed by the assessee and the field formations. Case 1. The assessee should represent (Through Range and Division) to the Commissioner of Central Excise and Service Tax, describing the mistake occurred/reasons for such errors along with certified copies of the remittance challans, ST-3 Returns for the relevant period and any other document pertains to the issue to establish the genuine mistake and to ratify the error. Case 2. Same as above. Case 3. The assessee should obtain a no objection Certificate from the assessee or any other person against whose registration number to which the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of C. Ex ST, Bhopal Vs. KK. Kedia 2014 (35) STR 383 (Tri. Del.) Being aggrieved with the order passed by Commissioner (Appeals), Revenue has filed the present appeal. 2. After hearing both the sides, I find that the respondent was a partner in a partnership firm engaged in providing management and repair services. With effect from 1-4-2011, the said partnership firm was dissolved and fresh registration was granted to the appellant as a person. The said respondent filed a refund claim of Rs. 9,39,564/- in respect of Service Tax paid by him, by way of adjustment of the said amount which was deposited by him in a wrong code belonging to partnership firm. The said adjustment was not allowed by the Deputy Commissioner of Central Excise. On appeal, Commissioner (Appeals) observed that the respondent was one of the partner of the erstwhile partnership was eligible to claim refund, if otherwise admissible. He observed that when the amount in question does not pertain to any outstanding liability of the partnership firm, the money deposited by the respondent in the old Service Tax registration code belonging to the partnership firm is a sheer mistake and has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax payments from the account of one registered unit to the account of another registered unit. It however does not say that there is any provision in the service tax law which prohibits such adjustment. Further, as stated earlier, the issue is not so much of law but of a mistake of incorrectly mentioning the registration number in the service tax deposit challan. That such mistakes do happen is also evident from the fact that Commissionerate of Cochin issued a Trade Notice No. 3/2014- S.T., dated 10-7-2014, the relevant part of which reads as under : - Subject : Ratification of remittances made against wrong accounting code and or wrong STC Code/C. Ex. Registration Number - Procedure - Regarding. There has been number of representations from registered service providers/receivers and Central excise assessees for rectification of mistakes occurred during remittances of service tax or Central excise duty against wrong accounting head and/or incorrect registration numbers. The Central Board of Excise Customs vide S.T. Circular No. 58/7/2003 (F.No. 157/2/2003 Cx. A), dated 20-5-2003 has clarified that in such instances the matter should be sorted out with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace in his ledger (Books of accounts) and attach with the representation besides the documents enumerated against Case I above. As may be observed, para No. 3 and para No. Case-3 of the said Trade Note squarely cover the situation obtaining in the present case and lay down a procedure for rectification of such mistake. 7 . In the present case, there is complete absence of mala fide and the mistake was brought to the notice of Revenue by the appellant itself. In effect, essentially, overall there has not been any short or delayed payment of service tax by appellant. In these circumstances, the question of penalties would not arise. In these circumstances, even the question of interest would not arise in the wake of C.B.E. C. Circular dated 20-5- 2013 cited above. We are of the view that the procedure prescribed by the Cochin Commissionerate in its Trade Notice dated 10-7-2014 is reasonable for the purpose of rectification of such mistakes without any risk to Revenue. 8 . In the light of the foregoing discussion, we set aside the impugned order, allow the appeal and remand the case to the primary adjudicating authority with the direction that the necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... munication at page- 102 and reply that there exists no demand of duty or any sum payable from the petitioners so far as assessee code No.001 is concerned and when the authority has also knowledge that there was a mistaken payment made under challan, which contained incorrect code i.e. Code no. 001, though it belonged to present assessee , who also has Code No. 002 also and who unequivocally intended to make payment demand, which was payable to him and which was paid, though mistakenly under wrong code i.e. Code No. 001, could not have been subjected to technical defect on the part of authority , so as to saddle with liability and the judgments of this Court in case of Devan Paper Mills Pvt Ltd (Supra) cited at bar would help the case of the petitioners, as the observations made in said decisions do squarely cover the current situation. 11. In that view of the matter, without making much reflection upon the findings of the authority, we are of the view that this is a case of issuing appropriate madamus for calling upon the authorities to treat the payment of Rs. 5,10,573/- against Code No. 002 from the date on which, it was paid resulting into exempting the petitioners from an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
