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2017 (4) TMI 993 - AT - Service TaxAdjustment of the service tax already paid under the wrong head - The appellant has already paid the service tax but, under the wrong head of ECI. But the department has demanded the service tax under the GTA - Held that - the Circular No. 7/93 dated 23.04.1993 issued by the Board, clearly permitted the transfer of credit balance lying in Personal Ledger Account under one minor head to another minor head - we direct the Jurisdictional Commissioner to make the adjustment of the service tax which has already been paid to the Government exchequer in the proper head - appeal allowed - decided in favor of appellant.
Issues:
- Appeal against Order-in-Original No. 142/2015-Adjn.(Commr)(ST) dated 29.02.2016. - Appellant engaged in Erection, Commissioning and Installation (ECI), Site Formation, and GTA services. - Service tax paid under wrong head of ECI, department demanded under GTA. - Request for adjustment of service tax already paid under wrong head refused by department. - Appeal filed due to refusal of adjustment request. Analysis: 1. The appellant, engaged in Erection, Commissioning, and Installation (ECI), Site Formation, and GTA services during 2011-2013, filed an appeal against Order-in-Original No. 142/2015-Adjn.(Commr)(ST) dated 29.02.2016. The appellant had paid service tax under the wrong head of ECI, although most of the income was from erection and commissioning of electric transmission lines. The department demanded the service tax under the GTA category, leading to the appellant's request for adjustment of the tax already paid under the wrong head, which was denied by the department, prompting the filing of the present appeal. 2. The Delhi Tribunal's decision in the case of Pepsico India Holding Pvt Ltd., Vs CCE, Allahabad [2010 (255) ELT 299 (Tri.-Del)] was referenced during the hearing. The Tribunal observed that there was no intention to evade payment of duty or withhold the amount payable to the government. It was noted that the appellant had transferred the total amount of duty, including Basic Excise Duty and Special Excise Duty, to the government's account, albeit with a mistake in specifying the code number while depositing the Special Excise Duty. The Tribunal emphasized that there was no deliberate attempt to evade duty payment and that the appellant's actions did not warrant penalty imposition. 3. Citing Circular No. 7/93-CX.6 dated 23-4-1993 issued by the Board, which permitted the transfer of credit balance between minor heads in the Personal Ledger Account, the Tribunal highlighted similar views expressed in various cases. It referenced cases such as South Asian Petrochem Ltd. Vs. CC, Kolkata [2007 (219) ELT 991 (Tri-Kolkata)], Commissioner Vs. South Asian Petrochem Ltd. [2009 (233) ELT A133 (Cal.)], and others to support the permissibility of such credit balance transfers. 4. After considering the circumstances and legal precedents, the Tribunal directed the Jurisdictional Commissioner to adjust the service tax already paid by the appellant to the government exchequer under the proper head. Consequently, the impugned order was set aside, and the appeal filed by the appellant was allowed. The decision was dictated and pronounced in open court, providing relief to the appellant in the matter.
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