2015 (11) TMI 623 - AT - Service Tax

Waiver of pre deposit - Adjustment of excess service tax paid - Held that - Prima facie, the demand seems to be as a result of non-permitting of adjustment of the service tax paid in excess during certain months with the amount of service tax short paid during certain other months. The appellant gave a month-wise/financial year-wise summary of the service tax paid which shows that overall it has paid service tax in excess by an amount of ₹ 1,77,26,240/- though the said summary has not been verified by Revenue. Whether the adjustment of service tax short paid and excess paid is permitted under the rules in the given circumstances requires a detailed analysis which can be taken up at the time of final hearing. Having regard to the fact that prima facie, overall it does not seem to be a case of short payment of service tax by the appellant we waive the requirement of pre-deposit and stay recovery of the impugned liability during pendency of the appeal. - Stay granted.

Issues:
1. Confirmation of service tax demand along with interest and penalties.
2. Non-permitting of adjustment of excess service tax paid in some months with the amount short paid in other months.
3. Reconciliation of service tax payments.
4. Prima facie assessment of the case.

Confirmation of service tax demand along with interest and penalties:
The appeal was filed against an Order-in-original confirming a service tax demand of Rs. 12,25,27,434 along with interest and penalties. The appellant was involved in coal washing and had been paying service tax under various categories. The demand was raised due to discrepancies in the reflection of service tax payments in the appellant's returns. The appellant argued that it had paid the overall amount in excess of what was due, but adjustments were not permitted as per rules. The Departmental Representative contended that without provisions for adjustment, the demand was sustainable, and reconciliation was necessary to verify the appellant's claims.

Non-permitting of adjustment of excess service tax paid:
The Tribunal analyzed the contentions of both parties and noted the appellant's submission of paying service tax in excess by Rs. 1,77,26,240 overall. The Tribunal observed that the demand seemed to result from the non-permitting of adjustment between excess payments in some months and short payments in others. While the appellant provided a detailed summary of payments, it had not been verified by the Revenue. The Tribunal acknowledged the need for a detailed analysis of whether adjustment was permitted under the rules, which could be addressed during the final hearing. Considering that there was no apparent case of short payment by the appellant, the Tribunal waived the pre-deposit requirement and stayed the recovery of the liability during the appeal's pendency.

Reconciliation of service tax payments:
The Departmental Representative emphasized the necessity of reconciling the service tax payments to verify the appellant's claims. The Tribunal recognized the importance of reconciliation to ensure the accuracy of the appellant's payment details. However, the Tribunal primarily focused on the issue of adjustment between excess and short payments, indicating that a detailed reconciliation might be undertaken during the final hearing.

Prima facie assessment of the case:
After considering the arguments from both sides, the Tribunal made a prima facie assessment that the demand arose due to the non-adjustment of excess and short payments by the appellant. The Tribunal highlighted the need for a detailed analysis of the permissibility of such adjustments under the rules, indicating that this aspect would be further examined during the final hearing. Based on the initial assessment that there was no evident short payment by the appellant, the Tribunal decided to waive the pre-deposit requirement and stayed the recovery of the liability pending the appeal.

← Previous Next →