Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs Rajdeep Buildcon Pvt. Ltd on 5 August, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI APPEAL NO. ST/256/09 (Arising out of Order-in-Appeal No. AGS(173) 80/09 dated 05.08.2009 passed by the Commissioner (Appeals) Central Excise & Customs. Aurangabad. For approval and signature: Honble Shri Ashok Jindal, Member (Judicial) ============================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
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Commissioner of Central Excise, Aurangabad.
:
Appellants
VS
Rajdeep Buildcon Pvt. Ltd.
Respondents
Appearance
Shri S.M. Vaidya, JDR Authorized Representative
Shri Sagar Shah, C.A. For respondent
CORAM:
Shri Ashok Jindal, Member (Judicial)
Date of decision : 05/08/2010
ORDER NO.
Per : Ashok Jindal, Member (Judicial)
Revenue has filed this appeal against order of the Commissioner (Appeals).
2. The facts of the case are that a show cause notice was issued to the respondent alleging that the service tax of Rs.1,00,924/- was paid by the respondent for the period January 2008 to February 2008 in respect of Commercial Construction Service for recovery of the service tax amount along with interest and the proposal of penalty under Section 76 read with Rule 6 of the Service Tax Rule 1994. In reply to the show cause notice the respondent submitted that they had inadvertently deposited an excess service tax amount of Rs.1,00,924/- in the month of October 2007 and they have adjusted the excess service tax paid in October 2007 against the service tax payable for the month of January 2008 and February 2008. The lower adjudicating authority confirmed the demand on appeal but the Commissioner (Appeals) dropping the demand. Aggrieved from the same the Revenue is before me.
3. The learned DR submitted that Rule 6 (4 A & B) of the Service Tax Rules,1994 deals with situation of the adjustment of excess service tax paid. The respondent has violated the conditions of Rule 6 (4 B) and they have not intimated of such adjustment to the Jurisdictional Superintendent of Central Excise within 15 days from the date of such adjustment they are liable to pay service tax.
4. Heard.
5. On careful examination of the submissions made by learned DR, I find that it is not disputed by the department/DR that the excess amount is not paid by the respondent in October 2007. It is not in disputed that respondent is not entitled to get back for such excess payment. It is also submitted by the Respondent that they have intimated to Range Superintendent of such an adjustment but after 15 days and it was only a technical default of the respondent and there is not short payment of service tax. I also find that while issuing show cause notice, the department failed to consider the intimation given by the respondent with regard to such an adjustment of excess payment of service tax by them. The Commissioner (Appeals) has rightly held that the respondent have discharged their service tax liability properly by adjusting the excess service tax paid by them and thus there is no question of short payment. I do agree with the observation of the Commissioner (Appeals). Accordingly, there is no reason to interfere with the same, the impugned order is upheld and the appeal filed by the revenue is rejected.
(Pronounced in court) (Ashok Jindal) Member (Judicial) Sm 3