2013 (12) TMI 103 - AT - Service Tax

Demand of service tax - Penalties under Section 76 and 77 - Suo moto adjustment of excess service tax paid - Held that - appellant can make suo-motto adjustment subject to, inter-alia, the following procedural conditions - It has not been denied by the appellant that conditions were fulfilled by them but has relied upon the case law of Single Member bench in the case of Siemens Limited vs. CCE, Pondicherry (2013 (2) TMI 609 - CESTAT CHENNAI). It is seen from the facts of the case that the value on which service tax was paid was determined as late as June 2007 whereas the duty was paid in 2006. In Para 6 of the order in the case of Siemens Limited, it has been discussed by the Bench on facts, as to how the appellant has provided reasonable explanation in the case. In the present case, there is no reasonable explanation from the appellant as to why appellant was not able to adjust excess service tax paid in the liability for the succeeding month or quarter. The words used in Rule 6 (4B) is not Subsequent Months or Quarters . It is a well settled proposition that when a procedure is prescribed by the legislation for availing an exemption/ concession than that procedure has to be followed strictly in that fashion only - Confirmation of demand and interest has been correctly made by the first appellate authority which needs to be upheld. Appellant has a bonafide belief that it was their own money and they are entitled to adjust the excess amounts paid. Under these circumstances there cannot be any malafide on the part of the appellant. Accordingly, I set aside the penalties imposed upon the appellant under Section 76 and 77 read with Section 80 of the Finance Act, 1994 - Decided partly in favour of assessee.

Summary

Issues:
1. Adjustment of excess service tax paid by the appellant.
2. Imposition of penalties under Section 76 and 77 of the Finance Act, 1994.

Analysis:

Adjustment of Excess Service Tax Paid:
The appellant filed a stay petition and appeal against the Order-in-Original (OIA) confirming a demand and penalties under Section 76 and 77 of the Finance Act, 1994. The appellant argued that as per Rule 6(4A) and 6(4B) of the Service Tax Rules, 1994, they could adjust excess service tax paid for future months/quarters, even if done after a year. The appellant contended that the adjustment was proper as the amount involved was less than one lakh. However, the Revenue contended that adjustment can only be made in the next month/quarter and requires intimation to the Revenue. The Tribunal noted that the appellant did not provide a reasonable explanation for not adjusting the excess service tax paid. The Tribunal emphasized that strict adherence to the prescribed procedure is necessary for availing exemptions/concessions. The Tribunal held that the case law relied upon by the appellant was not applicable to the present case, and upheld the confirmation of demand and interest.

Imposition of Penalties:
Regarding the penalties imposed under Section 76 and 77 of the Finance Act, 1994, the Tribunal observed that the appellant had a bona fide belief that they were entitled to adjust the excess amounts paid, indicating no malafide intent. Consequently, the Tribunal set aside the penalties imposed under Section 76 and 77 read with Section 80 of the Finance Act, 1994. The Tribunal rejected the stay and appeal filed by the appellant, except for the penalties imposed under Section 76 and 77 of the Finance Act, 1994.

In conclusion, the Tribunal upheld the confirmation of demand and interest due to the appellant's failure to provide a reasonable explanation for not adjusting the excess service tax paid as per the prescribed procedure. However, the Tribunal set aside the penalties imposed under Section 76 and 77 of the Finance Act, 1994, considering the appellant's bona fide belief in their entitlement to adjust the excess amounts paid.