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April 2015

[2015] 54 taxmann.com 355 (Ahmedabad -CESTAT) –Tops Security Ltd vs. Commissioner of Central Excise and Service Tax.

By Puloma Dalal, Jayesh Gogri, Mandar Telang Chartered Accountants
Reading Time 2 mins
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In absence of any evidence, excess payment made by one unit under its separate registration cannot be regarded as taxes paid for and on behalf of other unit having different registration.

Facts:
Appellant’s Mumbai unit paid excess service tax and Silvassa unit claimed that said excess payment was on behalf of Silvassa unit. The appellant argued that it cannot be made to pay tax twice. The Revenue argued that it cannot be ascertained that the excess service tax has been paid for the Silvassa unit from the representative challan.

Held:
It was held that in absence of any correlation that the payment has been made with respect to appellant’s Silvassa unit, it cannot be said that the service tax liability of Silvassa unit has been discharged. However, since the appellant was under a reasonable belief that the service tax is discharged by Mumbai Unit on its behalf and there is some indication from the Commissioner (Appeals)’s order that excess payment was effected by Mumbai Unit, it is possible to invoke section 80 of the Finance Act, 1994 to hold that penalties are not imposable under sections 76 and 78 of the Finance Act, 1994 even if extended period is applicable.

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