9911796707
TMI Blog2013 (2) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... of Finance Act, 1994. Learned Chartered Accountant, appearing on behalf of the appellant submitted that the appellant had surrendered the registration certificate on 25-4-2007. A search of the appellant firm was conducted and certain records were seized and consequent to adjudication after completion of proceedings, the above amount has been demanded. Learned Chartered Accountant submitted that he is not in a position to challenge the Service Tax amount demanded since all the records which were seized are no longer available and the appellant also does not have any record other than copies of Service Tax returns. The appellant had actually debited the CENVAT Credit of Rs. 3,79,112/-. But, the Department, while working out the Service Tax a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the above mentioned referred Order-in-Original. We would like to inform your goodself that there remains balance of Rs. 59,974/- after adjusting Rs. 2,03,828/-payable as penalty leviable in view of the provisions of first and second proviso to Section 78 from Rs. 10,79,112/- already paid by us and as worked out hereunder : Total Service Tax liability worked out by your goodself 8,15,310 Penalty under Section 78 after considering 1st and 2nd Proviso (25% of the tax liability of Rs. 8,15,310/- 2,03,828 Sub Total 10,19,138 Less : Amount already paid Through TR-6 towards the subject case 5,00,000 Through TR-6 dt. 6-10-2007 2,00,000 Through CENVAT as per ST-3 return for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings are concerned, these are arriving at the short payment of tax. Whatever amounts are ascertained as short period, it is open to the appellant to pay the same from CENVAT credit account or if balance is not sufficient, by way of cash. The admissibility or inadmissibility of credit is not an issue in these proceedings. It is upto the assessee to file self assessment returns for this purpose and utilize the credit to pay the tax by way of debit of the CENVAT credit account maintained by him." 3. I have considered the submissions made by both sides. In this case, by the time adjudication order came to be passed, the appellant was no longer a registered assessee. It is the submission of the appellant that while calculating the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner (Appeals) reproduced above, it becomes quite clear that the Commissioner (Appeals) has taken a view that the debit of CENVAT credit made by the appellant has to be accepted by the department in view of the fact that the same has not been challenged and according to the law, in the self assessment procedure, the assessee is free to utilize the credit and if the department has any problem, department can take action. Having failed to take any action or in the absence of any evidence for such action, the Commissioner (Appeals) can be said to have held that reversal of CENVAT credit of Rs. 3,79,112/- made by the appellant has to be taken as payment towards service tax and other dues confirmed against the appellant. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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