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2019 (5) TMI 1409 - AT - Service TaxRecovery of service tax short paid - Excess of service tax paid - adjustment of excess paid service tax with short paid service tax -Applicable rate of tax - extended period of limitation - HELD THAT:- The Appellant has paid Service Tax of ₹ 77,56,170.69/- in excess in some months during 10/2000 to 03/2004 as they were not able to estimate their correct Service Tax liability and to be on the safer side, they used to pay Service Tax provisionally which were never less than Service Tax actually payable by them, which were adjusted by them during subsequent months. The Tribunal in the Appellant’s own cases in THE GENERAL MANAGER, M/S BHARAT SANCHAR NIGAM LIMITED VERSUS CCE, RAIPUR AND VICE-VERSA [2014 (6) TMI 768 - CESTAT NEW DELHI] and in the case of M/S. THE GENERAL MANAGER, TELECOM, BSNL VERSUS CCE, RAIPUR [2014 (10) TMI 419 - CESTAT NEW DELHI] and in the case of BSNL VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH [2011 (7) TMI 946 - CESTAT, NEW DELHI] have allowed adjustment of excess Service Tax paid against short payment of Service Tax. Applicable rate of tax - HELD THAT:- The services were provided by the Appellant during 10/2000 to 13-05-2003 when the rate of tax was 5% whereas, the value of taxable services were received during 14-05-2003 to 03/2004 when the rate of tax was 8%. It is well settled that the rate of tax shall be the rate as applicable on the date of provision of taxable services and not the date of receipt of value of such taxable services. Extended period of limitation - HELD THAT:- The demand in the instant case is barred by limitation as for the self same period, the Ld. Commissioner vide the earlier adjudication order dated 30-03-2007 has held that the Appellant has been regularly filing ST-3 returns and reflecting payment of Service Tax and that there is no suppression of fact or intent to evade payment of duty - demand barred by limitation. Appeal allowed - decided in favor of appellant.
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