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2023 (1) TMI 804 - AT - Service TaxAdjustment of service tax paid earlier - advance tax vs excess tax - procedure prescribed in Rule 6 - denial of credit on the ground that same does not appear to be advance tax rather is excess payment of tax - Difference of opinion HELD THAT:- The registry is directed to place the matter before Hon’ble President to consider the difference of opinion to a third Member for resolution. There being difference of opinion between the Members, the following questions are framed for consideration by the ld. Third Member:- Q.1. Under the fact that service tax was payable on receipt basis during the period under dispute and admittedly, the assessee paid service tax at the time of raising of the invoice. Such payment has been held to be tax paid in advance by Member (Judicial), qualifying as advance tax under Rule 6(1A) of the Service Tax Rules. OR As held by the Member (Technical) that such payment of tax prior to due date is not advance tax but excess payment of tax qualifying for adjustment under Rule 6(4A) & 6(4B). Q.2. As held by the Member (Judicial) that adjustment of advance tax paid has to be allowed in the subsequent period under Rule 6(1A) and the disclosure of tax paid in ST-3 Return, amounts to compliance of the condition in Rule 6(1A) proviso. OR The payment in this case is excess payment of tax and thus, falls under the provisions of Rule 6(4A) and the same cannot be adjusted for failure to comply with the requirements of Rule 6(4B), as held by Member (Technical). Q.3. Whether as held by the Member (Judicial) that the Adjudicating Authority have wrongly applied Rule 6(4A)/6(4B) of the Service Tax Rules, which is applicable in case of ‘provisional assessment’ and the applicable Rule in the facts of the case is Rule 6(1A)? OR As held by the Member (Technical), Rule 6(1A) (advance payment of tax), Rule 6(4) (provisional assessment of tax) and Rule 6(4A) (excess payment of tax) are different and the applicable Rule is Rule 6(4A) read with Rule 6(4B). Q.4. The Hon’ble High Court have remanded the matter to the Tribunal to examine the entitlement of adjustment of tax, as prayed by the Revenue, and the same is not confined to the entitlement under the provisions of Rule 6(4A) and Rule 6(4B). As the provisions of Finance Act, 1994 read with Article 265 of the Constitution of India, does not provide for collection and retention of tax not authorized by law. The Advance/excess tax, admittedly paid should be adjusted for determining the net tax liability, as held by the Member (Judicial). OR In terms of the question framed and answered by the Hon’ble High Court, the Tribunal has been directed to examine the eligibility of the adjustment only in terms of Rule 6(4A) and Rule 6(4B), as held by the Member (Technical). Q.5. The application of Rule 6(4A) and Rule 6(4B) are subject to option made by the assessee for payment of tax on provisional basis under Rule 6(4), and are not applicable to service tax paid in advance in terms of Rule 6(1A), as held by the Member (Judicial). OR Rule 6 (1A), Rule 6(4) and Rule 6(4A) read with Rule 6(4B) deal with different situations and in the present case the provision of Rule 6(1A) is not applicable but Rule 6(4A) & 6(4B) are applicable as held by the Member (Technical). The Registry is directed to place the appeal records before the Hon’ble President for appointment of the ld. Third Member for determining the questions framed herein regarding the difference of opinion.
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