9911796707
TMI Blog2023 (6) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... e wrongly mentioned the location code of Kolkata Commissionerate (SB0302) instead of Haldia Commissionerate (700602)]. The department construed this mistake as non-payment of service tax in Haldia Commissionerate. Accordingly, a show cause notice dated 24/10/2008 was issued to the Appellant, demanding service tax of Rs 57,24,138/- along with Education Cess, Higher Education Cess etc. totally amounting to Rs 58,95,860/-. The said Notice was adjudicated and the demand was confirmed along with interest under section 75 of the Finance Act and penalty under section 76 of the Finance Act was also imposed vide order dated 24/12/2009. Aggrieved against the impugned order, the Appellant is before us. 2. In their submissions, the Appellant stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivers and Central Excise assessee for rectification of mistakes occurred during remittances of Service Tax or Central Excise duty against wrong accounting heads and or incorrect registration numbers. Central Board of Excise & Customs vide S.T. Circular No. 58/7/2003(F. No. 157/2/2003 Cx. A) dated 20/05/2003 has clarified tht in such instances the matter should be sorted out with the P.A.O. and the assessee need not be asked to pay Service Tax again. The transfer entries have to be effected by the PAO. As per Pr. Chief Controller of Accounts, New Delhi's letter NO. Coord/2(1)/76/e-PAO(Chennai)/13- 14/159 dated 04/09/2013 and the Civil Accounts Manual of the PAP, read with letter Chord/2(8)/Cex/13-14/224 dated 15/01/2014, even for previous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f accounts) and attach with the representation besides the documents. ................................ 5. The Appellant stated that the Trade Notice clearly lays down that mistake in remittance of service tax in a difference service tax registration of same assesse is a matter of internal adjustment at department's end and the assesse cannot be saddled with demand of service tax again. 6. The Appellant further stated that Service Tax paid under different registration but by the same company cannot tantamount to non-payment of service tax and no demand can be raised in respect of the same. 7. In this regard, they placed their reliance on the following decisions. 7.1 Welspun Corp Ltd., Vs. C.C.E. & S. T.O Rajkot-2023(2) TMI 780- CESTAT, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... head office under different registration number cannot be demanded from the Appellant's Anjar Unit and if at all there is discrepancy of different registration of head office, the department could have adjusted service tax paid by the head office against the service tax due of Appellant's Anjar Unit. 8. The Ld Departmental Representative reiterated the findings of the adjudicating Authority in the impugned order. Regarding the Department's appeal, he stated that penalty under section 76 is imposable for not paying service tax in due time. Penalty under section 77 is imposable for not taking Registration from proper officer. The Appellant has not taken registration under GTA service, as recipient and hence penalty under section 77 is imposa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt held that when authorities' stand became very clear no demand of duty or any sum payable from the petitioners so far as assessee code No. 001 is concerned and when the authority has also knowledge that there was a mistaken payment made under challan, which contained incorrect code i.e. Code no. 001, though it belonged to present assessee, who also has Code No. 002 also and two unequivocally intended to make payment demand, which was payable to him and which was paid, though mistakenly under wrong code i.e. Code no. 001, could not have been subjected to technical defect on the part of authority, so as to saddle with liability. The demand was set aside and the appeal was allowed. 12.2 Devang Paper Mills Pvt. Ltd., Vs. UOI [2016 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sionerate, we hold that the demand of service tax, Education Cess, etc along with interest under section 75 of the Finance Act 1994, confirmed in the impugned order is not sustainable and accordingly set aside. 14. We observe that Penalty under Section 76 of the Finance Act, 1994 is not imposable in this case, since service tax has already been paid to the government account. Penalty under Section 76 of the Finance Act 1994 is imposable only when service tax has not been paid to the Government Account. 14.1 The relevant portion of Section 76 of the finance Act 1994 during the material time is reproduced below. "76. Penalty for failure to pay service tax-Any person, liable to pay service tax in accordance with the provisions of section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
