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TMI Blog2023 (7) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... ustment of excess amount paid by the appellant should be allowed to be adjusted in the subsequent returns. The question of charging interest on this account and imposition of penalty is not tenable and the same is set aside. It has also been established time and again that one to one co-relation is not required and any amount paid in excess is eligible to be adjusted against the demand of the subsequent period. Further, as regards penalty imposed under section 78 of the Finance Act, 1994 - the Adjudicating authority has categorically recorded that the details were obtained from the ST-3 Returns and the financial accounts of the appellants. If the appellant had recorded the amount in their books of account and filed returns indicating the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the figure with that of the ST-3 Return. 3. The appellant was issued with a show cause notice dated 21/08/2012. The calculation has been shown at Page 14 15. By the said show cause notice, the appellant was directed to show cause as to why Service Tax amounting to Rs.1,07,562/- should not be recovered from the appellant under the proviso to Section 73(1) of the Finance Act, 1994 along with interest in terms of Section 75 of the said Act. Proposal for imposition of penalty was also made. 4. The appellant submitted the reply contending that (i) The appellant s Agency is registered under the Director General Resettlement under the Ministry of Defence in order to rehabilate ex-servicemen by engaging them up to the age of retirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.5,035/- towards interest and ordered for recovery of the balance Service Tax amounting to Rs.93,531/- under proviso to Section 73(1) of the Finance Act, 1994 and dropped the demand of Rs.4,449/-. He also imposed penalty of Rs.1,03,113/- under section 78 and separate penalty of Rs.1,000/- under section 77(2) of the Finance Act, 1994. (vii) The appellant filed an appeal before the Commissioner(Appeals) who upheld the Order-in-Original and rejected the appeal. (viii) The order passed by the authorities below is wholly erroneous and cannot be maintainable in law. The appellant submits that the order passed by the Adjudicating authority and the appellate authority reflects non-application of mind on the face of the order. While confirmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Balance Sheet figure and ST-3 Return figure is not at all a suppression. The intention of the appellant to evade tax, the main ingredients is totally absent. Extended period cannot be invoked and hence penalty under section 78 cannot be imposed Point takne in Ground No.9.0 and 10.0 on limitation has not been considered by the Commissioner (Appeals). Penalty under Section 77(2) to the tune of Rs.1,000/- is also not maintainable. 5. I find that the Ld.Commissioner(Appeals) though accepted the excess payment made by the appellant, but denied adjustment for not following the procedure by intimating jurisdictional Superintendent within a period of 15 days. It has been time and again held by the Tribunal and the superior Courts that substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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