TMI Blog2009 (9) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... ort agency’s service and transporter had already paid tax on same, demand of tax again on same was not sustainable. Held yes and drop the penalties. - ST/160 OF 2009-SM - 1359 OF 2009-SM(BR) - Dated:- 10-9-2009 - P.K. DAS, JUDICIAL MEMBER M.K. Sharma for the Appellant. S.N. Srivastava for the Respondent. ORDER P.K. Das, Judicial Member - Learned Chartered Accountant on behalf of the appellants fairly submits that they are contesting the impugned order on the following two issues:— (a) Whether the excess payment of service tax during the month of June August, 2005 can be adjusted against the short payment for the earlier period i.e., January to May, 2005? (b) Whether service tax paid by the transporter instead o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st short payment without adjusting the excess payment cannot be sustained. Regarding the other issue, he submits that the original authority after verification of TR-6 challan along with affidavit of the transporter dropped the demand which was not disputed by the Commissioner in the revised order. Thus, the demand of tax on the same service again amounts to double taxation. He also submits that the other issue involves in this matter that certain expenses would be included in the freight. He is not pressing the same as the amount involved is very meagre and the issue is not within the jurisdiction of this Single Member Bench. It is his submission that the entire case involves interpretation of provisions of law and, therefore, no penalty s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rata basis) against his service tax liability for the subsequent period, if the assessee has refunded the value of taxable service and the service tax thereon to the person from whom it was received." 6. On plain reading of sub-rule (1) of rule 6 of the Rules, it is clear that service tax shall be paid to the credit of the Central Government by the 5th of the month immediately following the calendar month in which the payments are received, towards the value of taxable service. Sub-rule (3) of rule 6 provides, that where an assessee paid excess service tax he may adjust the excess service tax so paid by him against his service tax liability for the subsequent period, if the assessee has refunded the value of taxable service and the servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties to pay service tax and the tax liability shall be taken as legally met in all the three cases. The noticee has produced copies of TR-6 challans and affidavits of the concerned transporters showing payment of service tax by them. Therefore, the question of demanding service tax once again does not arise. No tax liability can be affixed to the notice in this case." 8. Contention of the learned SDR is that liability of payment of tax on the assessee was not complied with by them. I do not find force in the submission of the learned SDR. I find that the Commissioner in his revised order have not disputed the payment of tax by the transporter. It is made clear that the service tax is on the service and, the transporter paid the tax on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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