2022 (12) TMI 1050 - AT - Service Tax

Seeking remand of the case - Service tax was paid in excess - excess amount may be adjusted against the interest liability - invocation of Section 73(3) of FA - HELD THAT - There is no dispute that the appellant have paid the Service Tax in excess as claimed by them, and it was submitted that the excess amount shall be taken care of liability of interest. If this be so the Commissioner(Appeals) should have considered this issue. However, the Commissioner (Appeals) has not given any finding on the claim of the appellant to settle the case under Section 73(3) of Finance Act, 1994. The matter needs to be reconsidered in the light of Section 73(3) of Finance Act, 1994 - appeal allowed by way of remand.

Issues:
1. Failure to obtain registration under Service Tax category and pay Service Tax on commission paid to foreign agent.
2. Demand of Service Tax, interest, and penalties confirmed by Adjudicating Authority.
3. Appeal to Commissioner (Appeals) resulted in modification of penalty but upheld the demand.
4. Appellant's submission for adjustment of excess Service Tax paid against interest liability.
5. Lack of finding by Commissioner (Appeals) on settling the case under Section 73(3) of Finance Act, 1994.

Analysis:
1. The case involved the appellant's failure to obtain registration under the Service Tax category and pay Service Tax on commission paid to a foreign agent. The Adjudicating Authority confirmed the demand of Service Tax, interest, and penalties amounting to Rs. 10,65,398. The appellant appealed to the Commissioner (Appeals), who modified the penalty but upheld the demand, leading to the present appeal.

2. The appellant, through written submissions, acknowledged the demand but sought to adjust the excess Service Tax paid against the interest liability. They argued that since the Service Tax was paid in excess, the excess amount should be adjusted. However, the Commissioner (Appeals) did not provide any finding on this issue of adjusting excess payment against interest liability.

3. The Hon'ble Members, after considering submissions from both sides and perusing the records, noted that the appellant had indeed paid the Service Tax in excess, as claimed by them. They observed that the Commissioner (Appeals) failed to address the appellant's claim to settle the case under Section 73(3) of the Finance Act, 1994. Consequently, the impugned order was set aside, and the appeal was allowed by way of remand to the Commissioner (Appeals) for reconsideration in light of Section 73(3) of the Finance Act, 1994.

4. The decision emphasized the importance of considering the appellant's claim regarding the excess Service Tax paid and the potential adjustment against interest liability under Section 73(3). The case was remanded to the Commissioner (Appeals) for a fresh review, highlighting the need for a proper determination on this crucial issue. The judgment aimed to ensure a fair and comprehensive assessment of the appellant's submissions and the applicable provisions of the Finance Act, 1994.

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