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Neyveli Lignite Corporation Ltd V/S Commissioner of GST & Central Excise, Trichy

    ST/41516/2016 (Arising out of Order-in-Original No. LTUC/240/2016-C dated 29.4.2016 passed by the Commissioner, LTU, Chennai) and Final Order No. 40138/2018

    Decided On, 18 January 2018

    At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, THE HONORABLE JUSTICE: SULEKHA BEEVI C.S.
    By, MEMBER AND THE HONORABLE JUSTICE: MADHU MOHAN DAMODHAR
    By, MEMBER

    For Petitioner: Raghavan Ramabhadran, Advocate And For Respondents: A. Cletus, Addl. Commissioner (AR)



Judgment Text


1. Brief facts are that the appellants applied online for new registration of their newly formed Finance Unit (Township Administration Office) for payment of service tax on salary paid to CISF and other services from April 2013 onwards. However, while doing so, they inadvertently mentioned themselves as non-assessee and selected Service Tax Commissionerate, Chennai instead of LTU, Chennai respectively in the software. Consequently, the registration No. xxxxx36 was generated under the jurisdictional of Service Tax Commissionerate, Chennai. Thereafter, they applied for fresh registration with LTU under the name General Manager/Township Administration and obtained registration No. xxxxx35 on 29.10.2013. They filed half yearly returns for the year April 203 to September 2013 with LTU on 6.11.2013 and discharged service tax on various services. On verification of the challans, it was noticed that

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the Commissionerate was noted as Commissionerate of Service Tax, Chennai instead of LTU, Chennai. In other words, they have paid service under registration No. xxxxx36 instead of No. xxxxx35. Though the appellant requested for adjustment of the payment made by them to the correct registration number, department declined the same. Show cause notice was issued alleging that the appellant has not discharged the service tax liability under registration No. xxxxx35, LTU, Chennai. The show cause notice was defended by the appellant stating that there was no short-payment of service tax and that the payment of service tax was made by them under a wrong assessee code and that the same has to be adjusted to the correct registration number. After adjudication, the Commissioner declined the request of the appellant and confirmed the demand of Rs. 4,92,55,858/- along with interest. No penalty was imposed. Aggrieved, the appellants are now before this Tribunal.

2. On behalf of the appellant, Ld. counsel Shri Raghavan Ramabhadran submitted that the show cause notice has been issued alleging short-payment of service. That there is no short-payment of service tax and the payment has been made by the assessee without delay and there is only a procedural lapse mentioning the correct assessee code in the challans. That this was only a procedural lapse which can be condoned. That there is no dispute as to the total quantum of service tax payable by the appellant for the period 1.4.2013 to 30.9.2013 and also in respect of the fact that the said amount has been paid into the Government treasury. The impugned order admits the fact that the appellant has paid the service tax and the only dispute in the present case is that the same has been paid under a wrong assessee code. The error of mentioning the incorrect assessee code was only due to a typographical error while filling up the online challan. That such procedural lapse may not be treated as short-payment of service tax as provided under Section 73 of the Finance Act, 1994. He drew support from the Board Circular No. 58/7/2003 dated 20.5.2003. That the circular clarified that the assessee shall not be asked to pay service tax again if he has paid service tax under a wrong accounting code and the matter should be sorted with the PAO. He relied upon the decision of the Tribunal in the case of Sahara India TV Network Vs. Commissioner of Central Excise : 2016 (41) STR 145 (Tri. Del.).

3. The Ld. AR Shri A. Cletus reiterated the findings in the impugned order. He submitted that the provision of law does not allow such adjustment of remittance of wrong assessee code/registration number. He submitted that the appellant could have applied for refund and then pay the service tax along with interest. Since there is no provision under the law, for adjustment of such error, while remitting the service tax, the request of the appellant to make adjustment cannot be entertained. He relied upon the decision of the Tribunal in the case of Plastichemix Industries Vs. Commissioner of Central Excise, Vadodara : 2016 (44) STR 254 and the decision of the Hon'ble High Court of Gujarat in the case of Asiatic Colourr Chem Industries Ltd. Vs. Commissioner of Central Excise : 2017 (354) ELT 354 (Guj.).

4. Heard both sides.

5. The appellant has paid the service tax under registration No. xxxxx36 instead of registration No. xxxxx35. The adjudicating authority has rejected the request of the appellant to condone the procedural lapse and for adjustment of the payment made. The ground on which such request was denied is that there is no provision for said adjustment under the Finance Act, 1994. The Board is issued a Circular dated 20.5.2003 wherein it is clarified that the assessee shall not be asked to pay service tax again if he has paid service tax under a wrong accounting code. The relevant portion of the circular is as follows:-

Subject : Ratification of remittances made against wrong accounting code and or wrong STC Code/C. Ex. Registration Number - Procedure - Regarding.
There has been number of representations from registered service providers/receivers and Central excise assessees for rectification of mistakes occurred during remittances of service tax or Central excise duty against wrong accounting head and/or incorrect registration numbers. The Central Board of Excise & Customs vide S.T. Circular No. 58/7/2003 (F. No. 157/2/2003 Cx. A), dated 20-5-2003 has clarified that 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 has to be effected by the PAO, as per Pr. Chief Controller of Accounts, New Delhi letter No. Coord/2(1)/76/e-PAO (Chennai)/13-14/159, dated 4-9-2013 and the Civil Accounts Manual of the PAO, read with letter Chord/2(8)/Cex/13-14/224, dated 1-5-2014, even for previous years.

The instances, resulting in remittances against wrong Head of accounts/STC numbers/C. Ex. Registration number, are cited below:-

1. Service Tax has been paid in the wrong accounting code of a difference service than which is rendered, where the mistake has occurred under same registration number.

2. Service Tax has been paid against incorrect Accounting Minor Heads of Education Cess, interest, penalty Secondary Higher Education Cess and or vice versa. For eg : interest paid under Secondary Higher Education Cess, etc.

3. Service Tax has been paid against the STC number of another assessee/same assessees (having multiple registrations) different registration number.

4. Service Tax has been paid against Central Excise Registration number of the assessee instead of Service Tax Code Number or vice versa (major heads-Customs-037, Central Excise-038 and Service Tax-044).

5. Service Tax has been paid against cancelled/surrendered registrations on obtaining centralized registration.

In such instances, in order to ensure uniformity and to avoid hardships to the assessees, the following procedure is prescribed to be followed by the assessee and the field formations.

Case 1. The assessee should represent (Through Range and Division) to the Commissioner of Central Excise and Service Tax, describing the mistake occurred/reasons for such errors along with certified copies of the remittance challans, ST-3 Returns for the relevant period and any other document pertains to the issue to establish the genuine mistake and to ratify the error.

Case 2. Same as above.

Case 3. The assessee should obtain a no objection Certificate from the assessee or any other person against whose registration number to which the wrong remittances have been made by e-payment to transfer the amount from their registration number, certified by the concerned Range Officer of Central Excise/Service Tax that the said amount has not been utilized or paid by him and does not surface in his ledger (Books of accounts) and attach with the representation besides the documents enumerated against Case I above.

The said issue was considered by the coordinate Bench of the Tribunal in the case of Sahara India TV Network (supra) and has referred the Board Circular. The Tribunal had set aside the demand as well as the penalties imposed directing the adjudicating authority to make necessary adjustment. Following the same we are of the view that the impugned order cannot sustain.

6. The decision relied by the Ld. AR in the case of Plastichemix Industries (supra) has been already considered by the Tribunal in the case of Sahara India TV Network (supra). So also the decision of the Hon'ble High Court of Gujarat in the case of Asiatic Colourr Chem Industries Ltd. (supra) is not applicable as the facts are entirely different from that of the present case.

7. In the result, the impugned order is set aside and the appeal is allowed with consequential relief, if any, and direct the adjudicating authority to make necessary adjustment.

(Operative portion of the order was pronounced in open court.
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