2019 (3) TMI 1416 - AT - Central Excise

Refund claim or suo-moto credit - appellant on realizing that they have already discharged duty by way of cash/credit for such invoices had availed suo motto credit - Held that - Undisputedly, the appellant had intimated the department that these invoices are cancelled. After intimating the department they have corrected the error and taken credit of the said amount. The only allegation is that the appellant ought to have sought for refund instead of taking suo motto credit. Since it was an error which has been intimated to the department and thereafter, no demand raised with respect to the amount indicated in these invoices - the suo motto credit availed in order to correct the accounts is legal and proper. Short-payment of service tax - GTA Service - Held that - There is some mistake in calculating the figures with regard to ST-3 returns. It is not understood on what basis the figures under ST-3 returns has been mentioned in the table - the issue requires to be remanded to the adjudicating authority, who is directed to re-adjudicate this issue. Rent-a-Cab Service - demand of service tax - Held that -The learned counsel for the appellant has submitted that thought they furnished the documents supporting their contention before the authorities below the same has not been considered at all - the said issue requires to be remanded and the adjudicating authority is directed to look into the receipt/documents produced by appellant to ensure whether the service tax has been discharged on the services. Imposition of penalty - Held that - The appellant having taken over the Unit only in 2013-14 cannot be saddled with guilt of non-filing of returns for the period prior to that. Further, it is seen that all the returns have been filed along with late fee by the appellant - the penalties imposed in this regard are unsustainable and requires to be set aside. Appeal allowed in part and part matter remanded.

Summary

Issues:
1. Alleged discrepancy in filing returns and duty payment.
2. Short-payment of service tax for GTA Service.
3. Demand of service tax under Rent-a-Cab Service.
4. Penalty imposed for non-filing of ER-7 returns.

Analysis:

1. The appellant was accused of discrepancies in filing returns and duty payment. The appellant argued that the duty was already discharged on cancelled invoices and they rectified the error by availing suo motto credit. The department contended that there is no provision for suo motto credit and the demand was sustainable. The tribunal found that the appellant had intimated the department about the cancelled invoices and rectified the error by taking credit, which was considered legal and proper. Hence, the demand related to this issue was set aside.

2. Regarding the short-payment of service tax for GTA Service, the appellant disputed the figures in the ST-3 returns and argued that the demand was incorrectly calculated. The tribunal observed discrepancies in the figures and directed a remand to the adjudicating authority for reevaluation.

3. An amount of service tax was demanded under Rent-a-Cab Service, which the appellant claimed to have already paid. The tribunal noted that the documents supporting the payment were not considered by the authorities. It was decided to remand this issue for further examination by the adjudicating authority to verify if the service tax was discharged by the appellant.

4. The penalty imposed for non-filing of ER-7 returns was contested by the appellant, stating that the returns were filed belatedly with late fees. The tribunal acknowledged that the penalties for the period before the appellant took over the unit in 2013-14 were unjustifiable. Consequently, the penalties for non-filing of returns were set aside.

In conclusion, the tribunal allowed the appeal in part and remanded certain issues for reconsideration by the adjudicating authority. The suo motto credit issue was decided in favor of the appellant, while the penalties for non-filing of returns were deemed unsustainable and set aside.