2024-VIL-390-CESTAT-DEL-ST
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SERVICE TAX CESTAT Cases

Service Tax - Short payment of service tax - Payment of tax prior to the issue of show cause notice – Appellant case since the was paid by it prior to the issue of show cause notice, as per section 73 (3) of Finance Act, 1994 the department should not have served any notice for the said amount – HELD - it is the job of the assessee to self-assess tax and file returns as required. It is the job of the officer to scrutinize them to ensure that the service tax has been correctly assessed and paid - since the returns are filed online, it is not possible for the assessee to provide any details other than what is required in the ST-3 returns. The central excise officer may seek any details, which he feels necessary to scrutinize them. The appellant cannot be faulted for not providing any information which it was not required to provide in the ST-3 returns - The central excise officer is given sufficient time to scrutinize the returns and issue a demand under section 73 within the normal period of limitation. If he fails to do so, and if some short payment is not detected and the demand gets time barred, the responsibility for that rests squarely on the officer who is mandated to scrutinize the returns and not on the assessee – the ingredients for invoking extended period of limitation need to be established and they cannot be presumed - the Commissioner has erred in issuing a show cause notice covering the amount which was already paid with interest prior to the issue of SCN. This payment is squarely covered by section 73(3) of the Finance Act and it is not excluded by virtue of section 73(4). The demand to this extent is set aside - For the same reason the imposition of penalty under section 78 on the assessee is also set aside - assessee’s appeal is allowed and the Revenue’s appeal is dismissed - Revenue appeal against dropping of demand under rule 6(3) of CCR, 2004 on the ground that the amount of CENVAT credit in terms of rule 6(3) of the Rules was already reversed but due to appellant mistake it was not shown properly in the corresponding ST-3 returns – HELD - the Commissioner examined the returns and the CA certificates and came to the conclusion that the amount under rule 6(3) was correctly reversed - If the Revenue feels that the Commissioner committed an error, it should point out as to where the error lies. It cannot be based on mere conjectures - the Revenue’s appeal is without any merit and it deserves to be dismissed
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