2023 (7) TMI 63 - AT - Service Tax

Short payment of Service Tax - Rent a Cab Scheme - Security Agency Service - adjustment of excess amount paid by the appellant should be allowed to be adjusted in the subsequent returns - Interest - penalty - HELD THAT - The Ld.Commissioner(Appeals) though accepted the excess payment made by the appellant, but denied adjustment for not following the procedure by intimating jurisdictional Superintendent within a period of 15 days. It has been time and again held by the Tribunal and the superior Courts that substantial benefit should not be denied to the assessee on account of procedural lapses. Accordingly, adjustment of excess amount paid by the appellant should be allowed to be adjusted in the subsequent returns. The question of charging interest on this account and imposition of penalty is not tenable and the same is set aside. It has also been established time and again that one to one co-relation is not required and any amount paid in excess is eligible to be adjusted against the demand of the subsequent period. Further, as regards penalty imposed under section 78 of the Finance Act, 1994 - the Adjudicating authority has categorically recorded that the details were obtained from the ST-3 Returns and the financial accounts of the appellants. If the appellant had recorded the amount in their books of account and filed returns indicating therein it cannot be said that the provisions of section 78 of the Finance Act, 1994 would be applicable inasmuch as there is no intention to evade Service Tax liability - the provisions of Section 78 do not get attracted in the case in hand. Accordingly, by invoking the provisions of Section 80 of the Finance Act, 1994, the penalty imposed by the Adjudicating authority under Section 78 of the Finance Act, 1994 is set aside. Appeal allowed.

Summary

Issues:
The issues involved in the judgment are:
1. Short payment of Service Tax under different categories.
2. Discrepancies between Balance Sheet and ST-3 Return figures.
3. Imposition of penalty and interest under the Finance Act, 1994.
4. Appeal against the Order-in-Original and Commissioner(Appeals) decision.
5. Bar on demand by limitation period.

Summary:

Short Payment of Service Tax:
The appellant, engaged in providing taxable services, was found to have short paid Service Tax under various categories. The discrepancies were identified during an audit, leading to a show cause notice for recovery of the outstanding amounts along with interest and penalties.

Discrepancies in Figures:
The discrepancies between the figures in the Balance Sheet and ST-3 Return were contested by the appellant. They argued that the differences should not be the basis for the demand, and certain amounts were not liable for Service Tax as they were subsidies provided for specific purposes.

Imposition of Penalty and Interest:
The Order-in-Original confirmed the demand and imposed penalties and interest. The appellant appealed, challenging the authorities' decision, claiming errors in calculation and non-consideration of excess Service Tax payments made in previous periods.

Appeal Against Previous Orders:
The appellant appealed to the Commissioner(Appeals) who upheld the Order-in-Original, leading to further appeal. The appellant contended that the orders reflected non-application of mind and errors in considering the excess payments and discrepancies in figures.

Limitation Period Bar:
The appellant argued that the demand was barred by the limitation period, as the discrepancies were for the period 2009-10 and the show cause notice was issued in 2012. They claimed that there was no intention to evade tax, and penalties under sections 78 and 77(2) were not applicable.

In the final judgment, the Tribunal allowed the appeal by the appellant, setting aside the impugned orders. The Tribunal emphasized the allowance of adjustment for excess payments made by the appellant and rejected the imposition of penalties under Section 78 of the Finance Act, 1994. The decision highlighted that procedural lapses should not deny substantial benefits to the assessee, and adjustments should be allowed in subsequent returns without charging interest or penalties.