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TMI Blog2019 (3) TMI 1416X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicated in these invoices - the suo motto credit availed in order to correct the accounts is legal and proper. Short-payment of service tax - GTA Service - Held that:- There is some mistake in calculating the figures with regard to ST-3 returns. It is not understood on what basis the figures under ST-3 returns has been mentioned in the table - the issue requires to be remanded to the adjudicating authority, who is directed to re-adjudicate this issue. Rent-a-Cab Service - demand of service tax - Held that:-The learned counsel for the appellant has submitted that thought they furnished the documents supporting their contention before the authorities below the same has not been considered at all - the said issue requires to be remanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties. In appeal, the Commissioner (Appeals) upheld the same. Hence this appeal. 2. Today, when the matter came up for hearing the learned counsel Shri V. Ravindran explained the allegations raised in the show-cause notice, which are as under:- (i) The appellant, while filing the returns in Nov. 14 had shown the value of clearances as ₹ 87,00,621/- instead of showing ₹ 90,33,975/-. There were certain invoices, which were cancelled and the appellant had discharged the duty on such invoices. He submitted that appellant had intimated the department about the cancelled invoices and there was no demand of duty raised on such invoices. The appellant on realizing that they have already discharged duty by way of cash/credit for suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. (iii) An amount of ₹ 4,993/- has been demanded as service tax payable under Rent-a-Cab Service. He submitted that the appellant is a service recipient and has to discharge service tax under reverse charge mechanism. The amount has been collected by the service provider from the appellant and paid to the Central Government. The appellant has furnished sufficient documents showing the payment of service tax on the entire amount under this category. Therefore, the service tax having been discharged, the demand cannot sustain. (iv) The appellant is aggrieved by the penalty imposed for non-filing of ER-7 returns for the period 2011-12 and 2015-16. He submitted that the present company had taken over the earlier Unit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also legal and proper. 4. Heard both sides. 5.0 The first issue is with regard to the allegation that the appellant has taken suo motto credit of ₹ 2,14,336/-. After perusal of records and hearing the submissions, it is seen that for few invoices the appellant discharged Central Excise duty and later these invoices were cancelled. Undisputedly, the appellant had intimated the department that these invoices are cancelled. After intimating the department they have corrected the error and taken credit of the said amount. The only allegation is that the appellant ought to have sought for refund instead of taking suo motto credit. Since it was an error which has been intimated to the department and thereafter, no demand raised wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of M/s. General Manager, J.K. Sugars Ltd., Vs Commissioner of Central Excise reported in 2016 (43) S.T.R.292 (Tri.-All.). 5.3 The learned counsel has pointed out that the appellant entity was formed in 2013-14 by taking over the entire Unit of PEEL. The authorities below have imposed penalty for non-filing of ER-7 returns for the period 2011-2012 and 2015-2016. The appellant having taken over the Unit only in 2013-14 cannot be saddled with guilt of non-filing of returns for the period prior to that. Further, it is seen that all the returns have been filed along with late fee by the appellant. On this ground, I am of the opinion that the penalties imposed in this regard are unsustainable and requires to be set aside, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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