TMI Blog2010 (3) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... time since then, they came forward to claim refund of the differential amount. In this scenario, the time-bar provisions of Section 11B(1) would be squarely applicable. As rightly found by the lower authorities, the refund claim was filed after expiry of the prescribed period of one year from the relevant date. The claim was rightly rejected as time-barred. - while sustaining the rejection of refund claim as time-barred, I direct the original authority to consider the question whether the excess amount of service tax paid by the assessee for February 2004 should be allowed, under sub-rule (3) of Rule 6, to be adjusted against any service tax due for any subsequent period - ST/29/07 - A/170/2010-WZB/C-IV/(SMB) - Dated:- 30-3-2010 - Appearance: Shri J.C. Patel, Advocate for the appellant Shri H.B. Negi, SDR for the respondent CORAM: Hon'ble Mr. P.G. Chacko, Member (Judicial) The appellant has obtained the requisite clearance from the 'Committee on Disputes' to pursue this appeal. 2. The appellant is engaged in the activity of rendering 'telephone services' to their subscribers. As per the half-yearly return filed by them for the period October 2003 to March 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment was not made by the authority and that, had any such assessment been made, a refund claim would have been filed within the statutory period of limitation. Apparently, the appellant wanted to say that, in the absence of 'best judgement assessment' under Section 72 then in force, the time-bar provisions of Section 11B would not be applicable. In adjudication of the dispute raised by the assessee, the original authority rejected their refund claim as time-barred inasmuch as the claim was filed on 26.9.2005 only, i.e. after expiry of the prescribed period of one year from the relevant date (date of payment of service tax). Before the appellate authority, the party contended to the effect that the assessments made by them were akin to provisional assessment and therefore the time-bar provisions should not be applied. Alternatively, they argued that the excess amount of Rs.7,20,578/- was in the nature of 'deposit' and therefore the amount should be refunded without reference to the time-bar provisions. All these arguments were rejected and consequently, the refund claim stood rejected as time-barred. 4. Ld. counsel today submits that, during the material period, the appellant's p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has paid to the credit of Central Government service tax in respect of taxable service, which is not so provided by him either wholly or partially for any reason, the assessee may adjust the excess service tax so paid by him (calculated on a pro 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. 5. It is pointed out that a proposal for adjustment of the aforesaid amount of Rs.7,20,578/- against future demands had been mooted by the appellant as early as in May 2005 before the jurisdictional Superintendent and that this aspect was also mentioned before the Commissioner (Appeals) but the same was not taken into account. The ld. counsel submits that, in the event of the assessments not being accepted as provisional assessments under sub-rules (4) and (5) of Rule 6, adjustment of the amount against future demands of service tax should be allowed under sub-rule (3) for the ends of justice. In this connection, reliance is placed on CCE vs. Sentinel Security (P) Ltd. 2006 (2) STR 520 (Tri-Del.) wherein a similar adjustment under Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the month of February 2004) against future demands of service tax. In his reply, the Superintendent informed the appellant that they were not entitled to make such self-adjustments. The Superintendent, however, advised them to file a refund claim in accordance with law. Indeed, there arose a dispute from the suggestion of the party for self-adjustment, on the one hand, and the rejection of that plea by the Superintendent, on the other. However, this dispute, in this case was not taken further to its logical conclusion. In this scenario, the original authority had no occasion to refer to sub-rule (3) of Rule 6 at all. In their appeal before the Commissioner (Appeals), however, the party referred to a number of documents including the Superintendent's reply to their letter dated 31.5.2005. One of these submissions reads as under:- As the excess amount is paid, the appellant has requested vide its letter dated 30/5/05 for adjusting the excess duty. However, vide letter dated 7/6/05, issued from the office of the C.E., it was informed that the refund can not be adjusted against the demand raised by the Department and BSNL will have to file separate application for refund in Form ..... X X X X Extracts X X X X X X X X Extracts X X X X
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