2019 (1) TMI 373 – CESTAT NEW DELHI – TMI – Short payment of service tax – erection, commissioning and installation services – works contract service – CENVAT Credit availed in excess – Held that:- This issue relates to examination of documents and thereafter to correlate as to whether there was any short payment of service tax during the impugned period w.e.f. July, 2012 to March, 2014 and as to whether the excess cenvat credit of ₹ 54,192/- has been availed by the appellant during the said period – there is no denial on part of the Department to the effect that the system of submitting return had a major change requiring the assessee to file the half yearly returns instead of the annual returns w.e.f. the year 2012. There is also no apparent denial of rebutting the failure in the software of the appellant as is mentioned by them.
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Perusal of various documents also makes it clear that there is no intentional act on the part of the appellant to evade the duty.
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Appeal
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. The said proposed recovery was confirmed vide the order of Additional Commissioner bearing No. 06 dated 28th February, 2018. Being aggrieved an appeal was preferred before Commissioner (Appeals), who vide the order under challenge bearing No.787 dated 27.04.2018 has upheld the Order in Original. Being aggrieved, the appellant is before this Tribunal. 2. I have heard Mr. Pradeep CA for the appellant and Ms. Tamanna Alam, ld. D.R. for the Department. 3. It is submitted on behalf of the appellant that most of the work of the appellant is being out-sourced including the accountancy work. It is submitted that during the impugned period, there was change in rate of duties and the procedure of submitting annual returns was changed with the mandate of submitting half yearly returns for which the software was not instantly prepared. It is submitted that the alleged short-coming occurred due to the error committed on account of the failure of the software but was not at all intentional on part
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the order. Appeal is accordingly, prayed to be dismissed. 5. After hearing both the parties, I observe that the Department noticed the short payment on the total taxable value as declared by the appellant and also noticed that the cenvat credit in excess has been availed by the appellant. To my opinion this issue relates to examination of documents and thereafter to correlate as to whether there was any short payment of service tax during the impugned period w.e.f. July, 2012 to March, 2014 and as to whether the excess cenvat credit of ₹ 54,192/- has been availed by the appellant during the said period. I further observe that there is no denial on part of the Department to the effect that the system of submitting return had a major change requiring the assessee to file the half yearly returns instead of the annual returns w.e.f. the year 2012. There is also no apparent denial of rebutting the failure in the software of the appellant as is mentioned by them. 6. The perusal of ord
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by the appellant that when this error came to their notice they suo moto assessed their accounts and whatever short payment of duty i.e. for an amount of ₹ 56,017/- was suo moto deposited way back in the year 2013. The authorities below are silent qua this deposit as well. The record also bear another document in the form of the certificate from the Chartered Accountant of the appellant to certify that service tax returns of the appellant were prepared by them on the software developed, prepared and designed by M/s. MDA Software Ltd. It is certified therein clearly that due to certain glitches, not noticed earlier, the input credit availed during the relevant period were not shown in the ST-3 returns as utilized towards discharging of output Service Tax liability for the impugned period, which resulted in the anomalous situation of large credit balances simultaneous on the un-availed Service Tax liability. The detail of Service Tax credit and the payments were also submitted with
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