2014 (7) TMI 289 - AT - Service Tax

Appellant wins appeal against penalties and demand for service tax, interest overturned

The appellant was found to have short-paid service tax, leading to a demand for payment confirmed by the Additional Commissioner. The appellant's appeal ... Short-payment of service tax - Interest paid but paid under separate heading - Held that:- Payment was made under a different Head should not result in denial of benefit of such payment and appropriation of the payment towards the liability, as similar view was taken in the case of Arcadia Share & Stock Brokers Pvt. Ltd. Vs CCE & C, Goa [2013 (7) TMI 330 - CESTAT MUMBAI]. Since the issue is covered by the precedent Tribunal decision, we consider that the issue is no longer res integra. In such a situation it would not be appropriate to consider the stay petition and keep the matter pending for a final decision on a subsequent date when there is nothing left to consider - Decided in favour of assessee. Issues:1. Short-payment of service tax by the appellant during 2006-07 to 2009-10.2. Appropriation of interest payment made by the appellant.3. Denial of benefit of payment due to incorrect quantification and payment under a separate heading.4. Appeal against penalty imposed under various sections of the Finance Act, 1994.Issue 1: Short-payment of service taxThe appellant was found to have short-paid service tax amounting to Rs. 66,60,460 during the period from 2006-07 to 2009-10. The appellant had paid Rs. 40,30,322 before the investigation and subsequently deposited Rs. 32,67,673. The Additional Commissioner confirmed a demand of Rs. 26,30,138 towards service tax and cess payable by the appellant. The order also imposed interest on the confirmed amount under Section 75 of the Finance Act, 1994, along with penalties under Sections 77 and 78 of the same Act.Issue 2: Appropriation of interest paymentThe original adjudicating authority declined to appropriate the interest paid by the appellant due to it not being paid under the appropriate head. However, the authority decided to adjust Rs. 26,30,138 out of the total payment towards the service tax and Education cess payable by the appellant. The appellant's submission for the adjustment of interest payable on delayed service tax payment from the excess amount paid was not accepted by the lower authorities.Issue 3: Denial of benefit of paymentThe Revenue objected to the interest payment not being quantified and paid under the correct heading. The appellant's argument for adjusting interest payment from the excess amount paid against non-payment was rejected. However, the appellate tribunal agreed with the appellant's submission that the payment under a different head should not result in the denial of the benefit of such payment. Citing a precedent case, the tribunal set aside the demand for interest separately made, stating that the issue was no longer res integra.Issue 4: Appeal against penaltiesThe penalties imposed on the appellant under Sections 77 and 78 of the Finance Act, 1994 were challenged in the appeal. The tribunal, after considering the precedent decision and waiving the requirement of predeposit, set aside the impugned order, allowing the appeal and overturning the demand for interest separately made.This summary provides a detailed analysis of the judgment, covering all the issues involved in the case comprehensively.