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M/S. A.S.R. Sarojiniammal & Others vs Commissioner Of Central Excise, ...

Customs Excise and Service Tax Appellate Tribunal29 September 2015

Ratio decidendi

The rule this decision rests on

Where a show-cause notice confines the service tax demand to a stated sum, adjudication must be confined to that sum, and any amount already deposited is to be appropriated against that demand; a demand for an amount not alleged in the show-cause notice cannot be sustained in adjudication. Where the tax due on that stated demand was duly paid before adjudication, no interest is payable on it, and the adjudicating authority is to verify the payment.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNALSOUTH ZONAL BENCH, CHENNAIST/40995/2014

[Arising out of Order-in-Appeal No.TNL-CEX-000-APP-07-09-14, dated 03.02.2014 passed by the Commissioner of Central Excise (Appeals), Madurai]

M/s. A.S.R. SAROJINIAMMAL & OTHERS APPELLANT

Versus

COMMISSIONER OF CENTRAL EXCISE, TIRUNELVELI RESPONDENT

Appearance:

For the Appellant Shri M. Kannan, Adv.

For the Respondent Shri K.P. Muralidharan, AC (AR)

CORAM:

Honble Shri D.N. Panda, Judicial Member

Date of hearing/decision 29-09-2015

FINAL ORDER NO. 41294 / 2015

Learned Counsel submits that as per show-cause notice there was service tax liability of Rs.2,79,568/- and that was liable to be appropriated against deposit of Rs.3,79,057/- made prior to issuance of show-cause notice.

2. The departmental representative says that the appellant has collected excess amount from the user of service. Therefore, it was left to the department to adopt right recourse of action under law.

3. Heard both sides and perused the records.

4. The show-cause notice indicates the dispute. At no place in the show-cause notice, there is any allegation that over and above an amount of Rs.2,79,568/-, there was due any other from the appellant towards service tax to the Government. Therefore, adjudication should be confined to the tax demand of Rs.2,79,568/- with interest, if any, thereon payable and the demand was required to be appropriated out of the amount, out of Rs.3,79,057/- already deposited by the appellant before adjudication. There was an order in that adjudication that an amount of Rs.99,489/- was deposited by M/s. ASRS and others into the credit of the department. But fate of such deposit remained unprobed.

5. Appellants prayer is that no interest is payable when the tax due was deposited duly. It is, therefore, made clear that there being tax demand of Rs.2,79,2568/- and that is claimed to have been paid duly, there shall be no interest liability. Adjudicating authority to verify the same. With such direction, the appeal is allowed. (Dictated and pronounced in open court)

(D.N. PANDA) JUDICIAL MEMBER

ksr 03-10-2015

DRAFT Remarks

I II III

Date of dictation 29.09.2015

Draft Order - Date of typing 03.10.2015

Fair Order Typing 03.10.2015

Date of number and date of dispatch 06.10.2015

3 ST/40995/2014

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