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TMI Blog2017 (6) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... .9.2006. The appellant is engaged in providing banking service and is registered with the department, under 'Banking and Other Financial Services' and Business Auxiliary Service'. The department issued show cause notice dated 7.4.2006 on scrutiny of ST-3 returns for the half year ending March, 2005 and September, 2005 alleging that :- (i) The appellant short paid Service Tax during the period October, 2004 to September 2005 in respect of banking and other financial services and business auxiliary services. Under banking and financial services, the amount was Rs. 36,61,819/- and in respect of other one Business Auxiliary service, it was Rs. 2,25,843/-. (ii) The appellant paid the service tax for the month of March, after a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of banking and financial services. There have also been short payments during the months of Nov, 2004, February, 2005 to April, 2005, July, 2005 and August, 2005. Likewise in respect of Business Auxiliary services also, excess payments have been made in April, 2005, June, 2005 as well as July, 2005. There have also been short payments in May, 2005, August, 2005 and September, 2005. He submitted that the excess amounts paid have been adjusted towards short paid service tax in the respective ST 3 returns. Once this is done, there is no short payment of Service tax. He relied upon the following case laws to support the argument that such adjustments are permissible, even for the period prior to 16.6.2005 when Rule 6(4A) of the Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Cenvat Credit Rules, 2004. Hence, such adjustment cannot be allowed for the period prior to this date. Consequently, their demand deserves to be upheld. On the question of irregular cenvat credit he argued that the adjudicating authority was within his right to deny the said cenvat credit on the ground of ineligible input services after scrutiny of details of documents submitted by the appellant during the course of adjudication proceedings. 6. Heard both sides and perused the records. 7. First we consider the allegation of short payment of service tax during the disputed period under both the banking and other financial services as well as business auxiliary services. We have perused the details of service tax payable and paid under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. Nothing is brought to my knowledge that an appeal has been filed and stay has been granted against these three decisions. I specifically find that the decision in the case of CCE, New Delhi v. Sentinel Security (P) Ltd. - 2006 (2) S.T.R. 520 (Tri.-Del.) and Oriental Insurance Co. Ltd. v. CCE, New Delhi - 2006 (3) S.T.R. 587 (Tri.-Del.) = 2005 (182) E.L.T. 463 (Tribunal) is on the point. There is no dispute that the respondent had paid excess service tax during the period, which they sought to adjust subsequently. In view of this, I am of the considered view that the learned Commissioner (Appeals) order is proper and correct and does not suffer from any infirmity. Appeal filed by the revenue is rejected.' 13. The ratio of the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal for the subsequent period vide CESTAT Final Order No.12.1.2015. We have perused this Final Order. This order was passed in the second round of litigation before the Tribunal. In the first round of litigation before the Tribunal, the matter was remanded to the adjudicating authority vide Final Order No.461/2010 dated 13.1.2010 with the following observations:- "5.5. As regards the Cenvat Credit availed by the appellant on the service tax paid on the services received, we find that the appellant today produced a certified copy of the statutory auditors, indicating that, on verification of the records it was found that said service tax liability has been paid by the appellant to the service provider. We are of the considered view that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 363 (Kar)] as also to another decision of the said High Court in the case of CCE Bangalore Vs Stanzen Toyotetsu India (P) Ltd. [2011-TIOL-866-HC-KAR-ST] as also in the case of Toyota Kirloskar Motor Pvt Ltd Vs CCE LTU Bangalore [2011-TIOL-941-HC-KAR-ST]. As such, we agree with the learned advocate that denial of credit in respect of the disputed services, which were admittedly used in relation to the business are covered by the definition of input services. 11. We are of the view that similar dispensation can be given to the dispute covered in the present case which is for the earlier period. For redetermination of the eligibility of credit of inputs service, we remand the matter to the adjudicating authority with a similar direction as i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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