9911796707
TMI Blog2012 (10) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... recruitment/supply agency services. It was noticed by the Department that during the period 2005-2006, they had not paid the Service Tax correctly and therefore the proceedings were initiated. Both these units contested the quantification and the Commissioner (Appeals) called for report from the jurisdictional Assistant Commissioner. On the basis of report received, the impugned orders have been passed. Both these units are in appeal against confirmation of demand and imposition of penalty. Revenue is now in appeal on the ground that the penalty under Section 76 of Finance Act, 1994 should have been imposed. 3. Heard both sides. 4. Ld. Advocate submitted that in respect of both these appellants, the Commissioner called for a report from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment of demand of Service Tax, and interest thereon from the excess amount paid by them. Otherwise, there is no need for mentioning the amount excess paid in the order portion. 5. It is his submission that in the case of M/s Vishal also, the Commissioner should have followed the same principle whereas he did not do so even though both the orders were passed on the same day and the issue involved is also same and in both the cases, the reports have been called for and received and relied upon. It is his submission that the appellant is not liable to pay any amount and in the absence of any dues from the appellant, there cannot be any penalty under any Section since there is no liability at all. However, he fairly admits that the penalty un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be adjusted by the Commissioner and since the amount excess paid is more than Rs. 2 lakhs and the same happened in the very next year, the penalties that are imposed under Section 77, 78 and interest, can be said to have been adjusted in excess payment made by the appellant. Under these circumstances, there is no case for any further demand. Ld. Advocate submitted that they have not filed refund claim and undertake not to claim the same. In the circumstances of the case, since the amount short paid was adjusted by the Commissioner by excess payment next year, it can be said to be the case covered by the provisions of Section 73 of Finance Act, 1994 and therefore the penalty under Section 76 of Finance Act, 1994 also cannot be imposed si ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
