2023 (6) TMI 10 - AT - Service Tax

Non-payment of Service Tax - Mentioning of wrong service tax registration in the payment challan for two months - Mentioning of wrong location code i.e. Kolkata Commissionerate code (SB0302) instead of Haldia Commissionerate Code (700602) in the payment challan from May, 2007 to February, 2008 - HELD THAT - The Appellant has discharged their Service Tax liability under RCM on GTA services. They have deposited the service tax in the account of Kolkata Commissionerate (AABCT1389BST002) instead of Haldia Commissionerate (AABCT1389BST001). The mistake in remittance of service tax in a difference service tax registration of the same assesse is a matter of internal adjustment at department s end and the assesse cannot be saddled with the demand of service tax again. This clarification has been issued by Board in Circular No 58/07/2003 dated 20/05/2003 and communicated to the trade vide Trade Notice No 03/2014 dated 10/07/2014 by Cochin Commissionerate - From the circular it is clear that the discrepancy such as payment of service tax under wrong registration can be adjusted against the correct registration for which the service tax is actually due. Accordingly, in the light of the above circular, the department could have made the necessary adjustment instead of raising the demand on the appellant. In the case of AURO PUMPS PVT. LTD. VERSUS UNION OF INDIA 2017 (7) TMI 24 - GUJARAT HIGH COURT , the duty is said to have been paid under incorrect assessee code i.e. Code no. 001 instead of Code No. 002. The Hon ble High Court held that when authorities stand became very clear no demand of duty or any sum payable from the petitioners so far as assessee code No. 001 is concerned and when the authority has also knowledge that there was a mistaken payment made under challan, which contained incorrect code i.e. Code no. 001, though it belonged to present assessee, who also has Code No. 002 also and two unequivocally intended to make payment demand, which was payable to him and which was paid, though mistakenly under wrong code i.e. Code no. 001, could not have been subjected to technical defect on the part of authority, so as to saddle with liability. The demand was set aside and the appeal was allowed. In view of the above cited decisions, Board Circular and Trade Notice issued by Cochin Commissionerate, we hold that the demand of service tax, Education Cess, etc along with interest under section 75 of the Finance Act 1994, confirmed in the impugned order is not sustainable and accordingly set aside - Penalty under Section 76 of the Finance Act, 1994 is not imposable in this case, since service tax has already been paid to the government account. Penalty under Section 76 of the Finance Act 1994 is imposable only when service tax has not been paid to the Government Account - Penalty under Section 77 of the Finance Act, 1994 is not imposable in this case, since non mentioning of GTA services in the service tax registration is a merely procedural lapse. Hence Department s appeal is not sustainable. Appeal of Revenue dismissed.

Summary

Issues involved: Service tax liability under reverse charge mechanism (RCM) wrongly paid in a different commissionerate, demand of service tax, penalty under sections 75, 76, and 77 of the Finance Act.

The Appellant, registered for GTA service under RCM in Haldia Commissionerate, mistakenly mentioned the location code of Kolkata Commissionerate while paying service tax for some months in 2007/2008. This led to a show cause notice demanding service tax of Rs 57,24,138/- along with other charges. The Appellant contested that the liability was deposited in the wrong commissionerate but can be adjusted as per Trade Notice No. 03/2014-S.T. The Trade Notice allows for rectification of mistakes in remittance of service tax against wrong accounting heads or incorrect registration numbers without demanding payment again.

The Appellant argued that the mistake in remittance of service tax under different registrations of the same assessee should be internally adjusted by the department as per relevant circulars and trade notices. Citing precedents, they emphasized that payment under different registrations by the same company should not lead to non-payment of service tax, and adjustments should be made internally by the department.

The Tribunal found that the Appellant had discharged their service tax liability under RCM on GTA services but mistakenly remitted it to a different commissionerate. Referring to circulars and trade notices, the Tribunal held that the department should have made necessary adjustments internally instead of raising a demand on the Appellant. Citing relevant decisions, the Tribunal set aside the demand of service tax, penalties, and interest confirmed in the impugned order.

Regarding penalties under sections 76 and 77 of the Finance Act, the Tribunal ruled that they were not applicable in this case as service tax had already been paid to the government account, albeit in the wrong commissionerate, and the non-mentioning of GTA services in the service tax registration was a procedural lapse. The impugned order was set aside, and the appeal filed by the Appellant was allowed while dismissing the appeal filed by the Department.