When assessee claimed set-off of excess payment against short-payment, matter was remanded back for decision after ascertaining excess deposit

CESTAT, NEW DELHI BENCH

New India Assurance Co. Ltd.

versus

Commissioner of Service Tax, Delhi-I

FINAL ORDER NOS. 55478 & 55479 OF 2013
STAY ORDER NOS. 55905 & 55906 OF 2013
APPLICATION NOS. ST/STAY/3891 & 3892 OF 2012
APPEAL NOS. ST/3067 & 3068 OF 2012

JANUARY  24, 2013

ORDER

Sahab Singh, Technical Member

This is a stay application filed by M/s New India Assurance Company Ltd. seeking waiver of pre-deposit of Rs. 14,451/- Service Tax, interest and equal amount of penalty imposed on them. Their appeal was rejected by Commissioner (Appeal) for non compliance of provisions of sec 35 F of the Central Excise Act, which have been made applicable to service Tax maters by virtue of sub-sections 83 and 85 of the Financer Act, 1994, without going into merit of the case.

2. The ld. Advocate appearing for the applicant submitted that there was short deposit of Service Tax during month of June 2004 and July 2004 & excess deposit of Service Tax in the month of April 2004 and May 2004. He submits that they have submitted a letter dated 12/10/2009 stating correct payment of service tax but the lower authority has not considered the amount of service tax paid by them in excess in the month of May 2004 and April 2004. He submits that the amount of service tax is already paid by them and there is no outstanding tax against them.

3. The Ld. DR reiterates finding of lower authority.

4. After hearing both the sides we find that the demand against the applicant has been confirmed on account of short payment during the period June 2004 and July 2004. It is the contention of the applicant that they have paid the amount in excess in the month of April 2004 and May 2004. We are therefore of the view the fact regarding excess payment is required to be verified by the Commissioner (Appeal). Accordingly we waive the pre-deposit and remand the case back to Commissioner for decision on merit after ascertaining the excess deposit of Rs. 14,451/- as service tax as contended by the applicant. Stay petition as well as Appeal are disposed of by way of remand.

NF