2014 (6) TMI 862

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....the impugned order, the Commissioner of Central Excise, Kanpur has confirmed the service tax demand of Rs.11,84,509/- under Section 11D of the Central Excise Act, 1994 read with Section 83 and 73 of the Finance Act, 1994 in respect of the period from October, 2000 to September, 2003 along with interest, and also the service tax demands of Rs.1,13,71,466/- for the period from October, 2000 to September, 2003 and of Rs.30,33,060/- for May, 2003 under Section 73 of the Finance Act, 1994. The service tax demand of Rs.11,84,509/- has been confirmed by the Commissioner under Section 11D for the period from October, 2000 to September, 2003 on the ground that during this period, while the appellant collected an amount of Rs.22,44,17,312/- from thei....

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.... amount from the customers towards service tax in excess of the amount paid to the Government as service tax, the short payment was made good in October, 2003 as during October, 2003, there was payment of service tax in excess of the service tax liability for that month and if the excess payment made during October, 2003 is taken into account, there would not be any demand under Section 11D, that there was no malafide intention in short payment of service tax during September, 2003, as every month, the appellant discharged the service tax liability on the estimated realization during that months against the bills, as the correct figures of the amount realized against the bills were not available, that as regards the service tax demand of Rs....

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....Dixit, ld. Departmental Representative defended the impugned order by reiterating the findings of the Commissioner. 5. We have considered the submissions from both the sides and perused the records. 6. The service tax demand of Rs.11,84,509/- under Section 11D is on the basis that while during the period from October, 2000 to September, 2003 the total amount collected by the appellant from their customers as service tax was Rs.22,44,17,314/-, they had deposited only an amount of Rs.22,32,32,803/- during this period and thus, an amount of Rs.11,84,509/- collected from the customers towards service tax demand was not paid to the Government. The appellant's plea, however, is that there was excess payment to the extent of about Rs.13 ....

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.... which there is service tax exemption under notification No.3/94-ST, and that the entire service tax demand is on the value of the services attributable to the above heads. The impugned order, however, has not examine this plea of the appellant and, therefore, this issue also has to be remanded to the Commissioner for de novo adjudication. 8. As regards the service tax demand of Rs.30,33,060 for May, 2003 while the rate of service tax had been enhanced from the earlier 5% to 8% Adv. w.e.f. 14.05.2003, the enhanced rate would be applicable only on the amount realized for the services provided from 14.05.2003 onwards and the enhanced rate of service tax cannot be applied in respect of the payments received for the services provided prior t....