2014 (8) TMI 55

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....on. 2. During the verification of CENVAT credit details relating to the period April 2006 to September 2006 it was noticed that in respect of 3 invoices the appellants had taken credit twice based on the same documents resulting in excess availment and utilization of CENVAT credit of Rs. 17,12,376/-. Ongoing through the records it was also found that during the period from May 2006 to October 2006, the closing balance in the CENVAT credit was 'nil' except for the month of October 2006 was Rs. 1,687/-. According to the Revenue this showed that appellant had taken excess credit deliberately to tide over the difficulties they had in mobilizing money. After finding this out, letter was written by the Range Officer to the appellant on 11.04.2....

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....e by both the sides. Learned AR submits that this is a case wherein the appellant made a mistake and took the credit twice and only after it was pointed out they made the payment. In fact the reproduction of facts above by us were after considering the submissions made by the learned AR. For better appreciation, the provisions of Section 73(3) are reproduced below:            (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of....

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....hing contained in sub-section 3 shall apply to a case where any service tax has not been levied or paid or has been short levied or short paid. In this case because of the fact that the closing balance was 'nil' or subsequently less than the amount but for the excess credit taken by the appellant, it has resulted in short payment of service tax over a period of 6 months, in fact, more than that. That being the position, the appellants case is covered by provisions of sub-section 4 and not by sub-section 3. If the submission of the learned counsel is accepted, it would amount to rendering the provisions of sub-section 4 irrelevant and redundant. Because once a person is in default and if he makes the payment of service tax and interest and ....