GENERAL MANAGER, TELECOM, BSNL Vs. CCE, RAIPUR

JUDGEMENT

(1.) THE appellant filed this appeal against Order -in -Original No. Commissioner/115/2008, dated 31 -12 -2008 only to the extent it confirmed demand of Rs. 67,59,593/ - against the appellant along with interest although no penalty under Sections 76 and 78 of Finance Act, 1994 or under Cenvat Credit Rules was imposed.

(2.) The appellant contended that they are a company with operations in the remote areas and therefore they are not able to precisely assess their Service Tax liability by 5th of the month following the month for which the Service Tax is required to be paid and so to be safer on a safer side they estimate and pay their Service Tax in a manner that it does not turn out to be less than actually payable. Thereafter when the Service Tax actually paid is found to be more than that actually payable, the excess amount paid is adjusted in the subsequent month. The Commissioner in his order has not disputed the fact of excess payment and its subsequent adjustment but has disallowed such adjustment on ground that proper procedure has not been followed in this regard. The appellant have contended that a mere procedural infringement should not result in denial of a substantive benefit. They have referred to the following judgments in their support:

(3.) WE have considered the facts and the submissions made in this case. As is evident from the several judgments cited above, it has been consistently held that substantial benefit cannot be denied in such cases merely because some aspects of the procedure had not been followed. Indeed, such adjustment has been permitted by the CESTAT in BSNL's own case cited in the earlier para. In the present case there has been no mala fide on the part of the appellant as is evident from the fact that the adjudicating authority refrained from imposing any penalty observing that the appellant acted in a bona fide manner and mala fide cannot be attributed to them. In the light of the forgoing the appeal is allowed and the impugned Order -in -Original is set aside, to the extent it was appealed against.