At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONORABLE JUSTICE: RAJU
For Petitioner: V.K. Jain, C.A And For Respondents: V.R. Reddy, AC (AR)
1. This appeal has been filed by M/s. Star Den Media Services Pvt. Ltd. The appellant had wrongly paid Service Tax in their return filed in the month of April, 2008 amounting to Rs. 9,50,000/-. The appellant adjusted the said amount of excess credit in the next return filed by them. The show-cause notice was issued to them demanding duty short paid in the second return filed. The matter was adjudicated and the original authority apart from confirming the demand also imposed penalty under Section 76 of the Finance Act, 1994. Interest under Section 75 was also sought to be recovered. The matter was agitated before Commissioner (Appeals), who allowed the benefit of Rule 6(4B) of the Service Tax Rules and permitted adjustment of Rs. 1 lakh to the appellant. Consequently, the demand was reduced to Rs. 8.5 lakhs. However rest of the order was upheld. Aggrieved by the said order, the appellants are before Tribunal. Revenue has also filed cross objection.
2. Learned Counsel for the appellant argued that they are entitled to the benefit of the provisions of Rule 6, which permits them to deposit any advance Service Tax, which can be adjusted in the subsequent period. He argued that this amount was given as an advance and, therefore, they are entitled to the benefit of the said provisions.
3. Learned AR relied on the impugned order.
4. I have gone through the rival submissions. I find that Rule 6(1A) permits the assessee to pay Service Tax in advance, which reads as under:-
"[(1A) Without prejudice to the provisions contained in sub-rule (1), every person liable to pay service tax, may, on his own volition, pay an amount as service tax in advance, to the credit of the Central Government and adjust the amount so paid against the service tax which he is liable to pay for the subsequent period:
Provided that the assessee shall,-
(i) intimate the details of the amount of service tax paid in advance, to the jurisdictional Superintendent of Central Excise within a period of fifteen days from the date of such payment; and
(ii) indicate the details of the advance payment made, and its adjustment, if any in the subsequent return to be filed under section 70 of the Act;]"
It is seen that the said provisions intend to permit assessee to pay Service Tax in advance. It is not permitted the assessee to deem anything wrongly paid as a result of self assessment as advance. That is the reason that the provisions require that the intention of paying advance should be made clear immediately after the payment. Learned Counsel produced the return filed by the appellant at the material time and can be seen that the said Service Tax has not been paid as advance on his self assessment. In these circumstances, Rule 6(1A) is not applicable to the current dispute. It is seen that benefit of Rule 6(4B) has been allowed by Commissioner (Appeals) in the impugned order. In these circumstances, I do not find any reason to interfere with the demand of duty.<
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br /> 5. Penalty under Section 76 has also been imposed on the appellant. I find that in the instant case, there is justification for invoking Section 80 of the Finance Act, 1994 to set aside the penalty under Section 76. Consequently, the appeal is partly allowed. Cross-objection filed by the Revenue is also disposed of.