ST - remitted under accounting code for Education Cess - no cause for issuance of SCN and demanding Service Tax again
IN yesterday's DDT we had highlighted the quandary faced by an assessee who had, by mistake, deposited service tax under the assessee code of their sister concern and when they approached the Commissioner to transfer the amount paid to the correct amount, they were informed that there is no procedure for such a ‘transfer' and were advised to pay ST under the correct code and file refund for the wrong payment.
The present case may provide the aggrieved assessee with some answer.
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The appellant, a registered stock broker had during the period October, 2004 to July, 2005, discharged service tax liability under a wrong accounting code inasmuch as Service Tax was remitted under the accounting code for Education Cess.
The department issued a notice for non-payment of service tax and the demand was confirmed by the lower authorities.
Before the CESTAT, the appellant submitted that on the subject matter the Board has vide Circular no. 58/07/2003-CX (ST) dated 20/05/2003 clarified thus -
Subject:- Using a wrong accounting Code for payment of Service Tax clarification- Regarding.
I am directed to say that a representation had been received by the Board raising apprehensions regarding using wrong Accounting Code for payment of Service Tax. Whether, amounts to having paid the Service Tax or not.
2. The Board has examined the issue. In this connection, I am directed to clarify that the assessee need not be asked to pay the service tax again. In such cased the matter should be sorted with the P.A.O. As regards to the cases where the assessee was asked to pay service tax again, the amount thus paid may be refunded by the concerned divisional Asst. Commissioner/Deputy Commissioner.
Reliance is also placed on the CESTAT decision in Pepsico India Holding Pvt. Ltd. vs. Commissioner of Central Excise, Allahabad (2010-TIOL-1556-CESTAT-DEL) wherein an identical issue was involved and the same was resolved in favour of the appellant; hence the appeal may be allowed.
The Revenue representative fairly conceded the position.
The Bench agreed with the submissions of the appellant and allowed the appeal.
For what purpose are Board Circulars if the benefits thereunder are not to be extended to the Trade.