TMI Blog2014 (8) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... see during certain months, for reasons other than interpretation of law, taxability, classification, valuation or applicability of exemption, has paid service tax in excess of his actual tax liability, the Government cannot retain the excess tax paid by the assessee by refusing its adjustment against his tax liability during other months and refusing adjustment of such excess tax payment during a month against tax liability during other months and appropriation and retention of the same would amount to collection of tax without the authority of law which is contrary for the provisions of Art 265 of the Constitution of India. Therefore, if excess payment of tax in a month is not on account of reasons involving interpretation of law, taxability, classification, valuation or applicability of exemption notification and is purely on account of inability of the assessee to exactly determine the total amount collected during the month against the bills raised, as a result of which he had determined his tax liability or estimation basis, the excess amount of tax paid during the month can be adjusted against his tax liability during other months and in this regard, there cannot be any m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst this order of the Commissioner (Appeals), this appeal has been filed by the assessee. 2. Heard both the sides. 3. Shri Sameer Agarwal, Advocate, ld. Counsel for the appellant, pleaded that there is no dispute that there is no short payment of tax and that what the appellant have done is the adjustment of the excess paid service tax during the earlier months against their service tax liability for November, 2006 to the extent of ₹ 9,13,200/- and similarly, adjustment of excess tax paid earlier against their education cess liability for the month of Jan. 2007 to extent of ₹ 4,72,907/-, that this adjustment is permissible to the appellant in terms of Rule 6 (4A) read with Rule (4B), according to which, notwithstanding anything contained in sub-rule (4), where an assessee has paid to the credit of Central Government, any amount in excess of the amount required to be paid towards service tax liability for a month or quarter, as the case may be, he may adjust such excess amount paid by him against his tax liability for succeeding month or quarter subject to the condition that the excess amount paid is on account of reasons not involving interpretation of law, taxabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be paid to the credit of the Central Government by sixth of the next month by the assessee, if the duty is deposited electronically through internet banking; and by the 5th day of the next month, in any other case. 7.1 Sub-rule (2) of Rule 6 prescribes the manner of payment of service tax, which according to this sub-rule is to be paid with the banks notified by the CBEC for this purpose in TR-6 form or, in any other manner as prescribed by the CBEC. Sub-rule (3) of Rule 6 covers a situation where an assessee had received payment for certain services to be provided and had paid the service tax on it, but for some reasons, he could not provide the services wholly or partly and according to this rule, the assessee can adjust the excess payment of service tax calculated on prorata basis against his service tax liability for subsequent period if he has refunded the value of taxable service along with service tax to the person from whom it was received. Thus, the sub-rule (3) provides for limited facility of adjustment in the cases where the amount has already been received by an assessee for the service to be provided and tax leviable thereon had been paid, but subsequently, due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of service tax during the month in excess of the actual service tax liability and which can always be adjusted against his service tax liability for other months, as there is no unjust enrichment angle involved. For example if against actual payments of ₹ 4 crore received by an assessee in a particular month against service provided on which his service liability @ 10% adv. is ₹ 40 lakhs, he has paid tax of ₹ 50 lakhs on the basis of his estimated receipt of rupees five crores during the month the excise tax payment ₹ 10 lakh paid is like an advance payment of tax whose incidence has not been passed on to his customers. In fact, w.e.f. 1.3.2008, sub-rule (1A) of Rule 6 has been introduced by Notification No.4/08-ST dated 1.3.2008 which also provides that without pre-judice to the provisions of sub-rule (1) of Rule 6, every person liable to pay service tax may, on his own, pay an amount as service tax in advance to the credit of Central Government and adjust the amount so paid against service tax liability, which he is liable to pay in subsequent period, subject to the condition that he intimates the details of the amount paid in advance to the Jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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