2012 (6) TMI 418 - AT - Service Tax

Adjustment of excess payment of service tax made in the previous quarter - Held that - As the excess amount actually adjusted amounting to Rs.32,545/- with interest has been deposited and penalty also has been deposited and considering the amounts deposited as sufficient, the requirement of pre-deposit of balance dues is waived and stay against recovery of the same is granted during pendency of appeal.

Summary

Issues: Condonation of delay in filing appeal, Adjustment of excess service tax payment, Penalty under Section 76, Commissioner (Appeals) exceeding scope of show cause notice, Waiver of pre-deposit and stay against recovery

The judgment deals with the issue of condonation of delay in filing the appeal. The appellant sought condonation of a seven-day delay citing Diwali holidays as the reason. The Tribunal accepted the reasons provided and condoned the delay of seven days.

Regarding the adjustment of excess service tax payment, a show cause notice was issued to the appellant for allegedly adjusting Rs.99,998/- as excess payment, whereas the actual excess payment was Rs.67,453/-. The original adjudicating authority confirmed the demand of Rs.32,545/- and imposed a penalty under Section 76. The Commissioner (Appeals) upheld the Revenue's contention that there was no excess payment in the previous quarter to be adjusted, contrary to the show cause notice. The Tribunal acknowledged the argument put forth by the appellant's counsel that the Commissioner (Appeals) exceeded the scope of the show cause notice. Considering the amounts already deposited, the Tribunal waived the requirement of pre-deposit of balance dues and granted a stay against recovery during the appeal's pendency.

In conclusion, the Tribunal allowed the stay petition and the application for condonation of delay, thereby addressing the issues raised by the appellant effectively and granting the necessary relief in the matter.