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TMI Blog2010 (4) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by them and refund claim for the period from October 2003 to March 2004 was found admissible and sanctioned. After going though the statements of actual payment made and payable, department found that appellant had short paid service tax during the period from April 2003 to September 2003 and department issued show cause notice and demanded this amount. The amount demanded was Rs. 1,36,173/-. No penalty has been imposed but interest has been demanded. 2. Learned advocate for the appellants submitted that in this case even though there was short payment of Rs. 1,36,173/- during the period April 2003 to September 2003, there was also excess payment of service tax to the tune of Rs. 4,20,537/- during the period from October 2003 to March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hy legally short payment cannot be adjusted against the excess payment and I find myself in agreement with view taken by her. She has observed that if excess payment was made earlier, later on it cannot be adjusted against the duty liability in terms of provisions of Section 11D. Another way of looking at this is in the case of service tax and Central Excise duty assessment is based on invoices. Therefore, each transaction has to be assessed before payment is made. Further, in respect of refund it is necessary to examine applicability or unjust enrichment clause by the adjudicating authority. Under these circumstances, adjustment is possible only when the short payment is adjudicated and becomes confirmed arrears and refund claim is conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ror and there was no malafide intention. Further he finds no justification for imposing penalty under various sections in view of the provisions of Section 80 of Finance Act, 1994. I feel that that there has to be a clear finding that suppression or mis-declaration for invocation of extended period and for demand also. Once such mis-declaration/ suppression is upheld question of penalty arises. If there is no misdeclaration or suppression, question of waiving of penalty under Section 80 of the Finance Act, 1994 does not arise, since demand itself cannot be upheld. Therefore, I feel that the matter is required to be considered properly by the Original Adjudicating Authority. In view of the above discussion, the impugned order is set aside an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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