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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 ..... the impugned order is set aside and the matter is remanded back to Original Adjudicating Authority with directions to consider the matter afresh. It is made clear that all the issues are kept open and opinion expressed by me would not be binding on both the sides. - ST/00361 of 2009 - A/423/2010-WZB/AHD - Dated:- 30-4-2010 - Mr. B.S.V. Murthy, Member (Technical) Shri S.J. Vyas, Advocate, for the appellant. Shri Sameer Chitkara, SDR, for the respondent. [Order Per : Mr. B.S.V. Murthy]. - Appellant is engaged in the business of Stock Broker Service. During the period April 2003 to March 2004, there was short payment as well as excess payment of service tax by the appellants to the Revenue. Assessee filed a refund claim of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lieved that action taken by the appellant in claiming less amount of refund so that the short payment can be adjusted as sufficient. He submitted that in the event of Tribunal upholding the decision of the lower authorities that excess payment cannot be adjusted against the short payment, he would like to submit that show cause notice was issued beyond the period of limitation, in view of the fact that Original Adjudicating Authority held that there was no intention to evade duty on the part of the appellants. 3. Since the matter was heard in great detail, it would be appropriate to take up the appeal for final decision and accordingly, requirement of pre-deposit is waived and appeal itself is taken for disposal. The Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oking extended period of five years. I find that the short payment in respect of service tax collected from their customers, was on account of software/ clerical mistake. Therefore, I do not find any malafide intention on part of the assessee to evade payment of service tax and do not find justification in imposing penalty under Section 76 78 of Finance Act, 1994, in view of the provisions of Section 80 of the said Act. 4. The above two paras are contradictory to each other. In the first Para, Assistant Commissioner is confirming the demand beyond the period of limitation invoking the extended period meaning hereby that there was suppression of facts/ mis-declaration. In the very next Para, he has mentioned that the short payment oc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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