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2024 (4) TMI 112 - AT - Service TaxAdjustment of excess service tax paid with subsequent service tax liability - case of Revenue is that Rule 6 (3) of Service Tax Rules, 1994 do not provide for such adjustments - HELD THAT:- From perusal of the Rule 6 (3), it is evident that such adjustment is provided in respect of services which were either not provided or partially provided for any reason. The phrase 'partially provided for any reason' would include the short payments made by the recipient or adjustments made by the recipients while making payments to the service provider against any deficiency in the services provided. Commissioner (Appeals) has in the impugned order referred to the credit note dated 31.03.2010 addressed to their client M/s Vipul IT Infrasoft Pvt. Ltd. but have refused to accept the same for a simple reason that the same was issued without any apparent discussion and negotiation and being in respect of only one bill. Accordingly, raised doubt regarding the genuineness of the credit note, the doubt in the mind of Commissioner (Appeals) is specified by any evidence which has been part of record. On the contrary, it is submission of the appellant that the figures stated in the balance sheet for the year 2009-10 wherein the total value of services provided is shown as Rs.24,55,90,004/- instead of Rs.27,63,86,166/- as claimed in the ST-3 returns. After this difference in the true values is on account of the amount refunded by way of issuance of credit note as this amount of Rs.3,24,07,774/- inclusive of service tax of Rs.10,65,330/- was refunded back to their service recipients, the same was excess payment and could have been adjusted as per Rule 6(3) in subsequent returns. On going through sub-rule 3, it is found that the excess amount of service tax paid by the assessee can be adjusted against his service tax liability for the subsequent period. Only condition for eligibility of this sub-rule is that if assessee has refunded the value of taxable service and service tax thereon to the person from whom it was received. Appellant claims that appellant has refunded the excess S-T to its customers - the finding of the Commissioner (Appeal) that “this sub-rule is applicable only to the case of excess payment of service tax which can be made good in subsequent period and not to the case where taxable values are not ascertainable for longer period” as sub-rule 6(3) does not say so, cannot be agreed upon - appellant’s contention is agreed upon that sub-rule 6(3) is not dependent on provision of sub-rule 6(4). Moreover there is no time limit prescribed under sub-rule 6(3) for making adjustment. There are no merits in the observations made by the Commissioner (Appeals) which are on the basis of various presumptions as indicated in the impugned order. As there are no merits in the order in respect of the merits of the issue, the issue of limitation and penalty not considered. Appeal allowed.
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