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TMI Blog2013 (11) TMI 1507X X X X Extracts X X X X X X X X Extracts X X X X ..... cess of their tax liability to the extent of Rs.52,141/- due to their mistake in arriving at the assessable value of the service rendered. During the period Oct 10 to March 11, they adjusted this excess payment made by them towards liability for this period and paid lesser amount as compared to the tax liability which should have been paid for Oct 10 to March 11. Revenue was of the view that such suomotu refund of excess payment taken during the period Oct 10 to March 11 was not permissible as per the Service Tax Rules and the Finance Act, 1994 and therefore, Revenue issued show cause notice for recovery of short payment of service tax liability for the period Oct 10 to March 11. The matter was adjudicated and the Asst. Commissioner confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 76 of the Act is modified and a penalty of rupees two hundred for every day during which such failure of payment of service tax continues or at the rate of two percent of such tax, whichever is higher as it existed during the material period. 4. At this stage, the appellant is contesting both tax liability as well as penalty in Appeal number ST/40078/13. In Appeal No. ST/40077/2013 the appellant is contesting the penalty. There is duplication in the prayers in the two appeals which has happened due to the fact that Commissioner (Appeals) issued two orders on the same matter. His argument is that Rule 6(4A) allows adjustment of excess service tax paid during one quarter in succeeding quarter. The rule does not provide that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax liability in further appeal. His further argument is that considering the short payment for the period Oct 10 to March 11, penalty under section 76 is rightly imposed. 6. I have considered the arguments on both sides. I am of the view that a liability admitted during a proceeding either at the adjudication stage or at the first appeal stage, cannot be agitated in further proceedings. Therefore, I hold that the appellant cannot get any refund of the payment made subsequently for the period Oct 10 to March 11 and there is no need to go into the legal issue raised in this matter by the appellant. 7. However, in the matter of penalty, I feel that this is a fit case for invoking section 80 of the Finance Act, 1994 because in this case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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