TMI Blog2019 (11) TMI 1266X X X X Extracts X X X X X X X X Extracts X X X X ..... the excess payments made by appellant from April 2015 till March 2016 was not allowed to be adjusted for which the present demand has been made. The demand therefore does not arise out of short-payment of tax. In the present case, the period for which excess payment has been disallowed is from April 2015 to March 2016. Even if the assessee files a refund claim in September 2016, when he realized that there is excess payment, the claim would be well within the time limit under section 11B. Further, it is also brought out from the record that the assessee has not collected service tax from the customer and therefore not passed on the tax burden to another. This being the case, the appellant would be otherwise eligible for refund. The provision for adjustment is to avoid the hassles of refund - The adjustment made by the assessee in the month of September 2016 can be said to be adjustment in accordance with Rule 6(4A) of the Service Tax Rules, 1994. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 41563 of 2019 - Final Order No. 41272/2019 - Dated:- 8-11-2019 - Hon ble Ms. Sulekha Beevi C.S., Member (Judicial) Shri N. Viswanatha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch sale value. This excess payment of service tax came to the knowledge of the appellant only in September 2016. Therefore, the excess service tax paid by the appellant during the period April 2015 to June 2016 was adjusted in the quarter of September 2016. 2.1 The ld. counsel submitted that the word immediate being absent in Rule 6(4A), the department cannot interpret the provision by adding the word to disallow the adjustment. The department does not have a case that the appellant had collected service tax from the customer or that the burden of service tax has been passed on to another. In any case, the appellant would have been eligible for refund and the adjustment has been made in accordance with the provisions of law. He relied upon the decision of the Tribunal in the case of General Manager (CMTS) Vs. Commissioner of Central Excise, Chandigarh 2014 (36) STR 1084 (Tri. Del.) to canvass the point that the excess amount paid by an assessee cannot be retained by the department since the same would be against Article 265 of Constitution of India. The decision in the case of Commissioner of Central Excise Vs. Rajdeep Buildcon Pvt. Ltd. 2011 (21) STR 663 was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id by him against his service tax liability for the succeeding month or quarter, as the case may be. 6. From the above provision, it can be seen that the word immediate is absent in the Rule. The Rule says that the assessee can adjust the excess amount paid by him against the service tax liability for the succeeding month or quarter, as the case may be. The department is of the view that since the word quarter is used after the word month , the only meaning that can be inferred from the Rule is that adjustment of excess amount paid can be made only in the immediate succeeding month or quarter. Needless to say that when the language in a statute is plain and unambiguous and admits of only one meaning, effect must be given to it, irrespective of the consequences. On understanding the plain and natural sense of the Rule, an assessee is allowed to adjust the excess amount paid by him to the service tax liability for succeeding month or quarter. 7. In September 2016, appellant realized the excess payment made during April 2015 to June 2016 and adjusted it in September 2016 while filing returns. The excess amount paid by appellant during April 2016 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rases should never be attributed to the Legislature. It has been authoritatively held by their Lordships of the Supreme Court in J.K. Cotton Spinning and Weaving Mills Co. Ltd. Vs. State of Uttar Pradesh, AIR 1961 SC 1170, that the Courts always presume, while interpreting statues, that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. 39. Keeping the above principles in view we must assume that the Legislature has deliberately used the well-known expression as the case may be in the proviso in question with some definite purpose and intendment. This expression necessarily means that at least two situations are envisaged by the earlier part of the section and two separate provisions or alternatives are provided in a later part of the same sub-section to one of which the one alternative and to the other of which the other is intended to be applicable. The expression as the case may be cannot permit the application of the same alternative to both the contingencies or vice versa. It is implicit in the use of this phrase that one out of the various alternatives would apply t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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