TMI Blog2011 (8) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... , the service tax cannot be demanded once again - Nevertheless, this was an omission on the part of Central Excise officers but the fact remains that the assessee has only made statement that there was an excess payment in the month of April 2008 and no documentary evidence to support this statement was made - Decided in favor of the assesee by way of remand to adjudicating authority - ST/225 of 2011 - A/1574/2011-WZB/AHD - Dated:- 23-8-2011 - Mr. B.S.V. Murthy, J. For Appellant : Shri Vinay Kansara, Advocate For Respondent : Shri R.S. Srova, JDR Per : Mr. B.S.V. Murthy; Service tax of Rs. 4,03,307/- has been demanded with interest from the appellants on the ground that their claim for adjustment of excess payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in the month of March 2008. When no evidence has been produced, the lower authorities were correct in coming to the conclusion that appellant are liable to pay service tax as per the total amount received and reflected in the returns for the purpose of service tax. He points out that in the month of March, the total amount for which service rendered and tax payable and paid tally, whereas in the case of April 2008, there is short payment. 3. I have considered the submissions made by both sides. Lower authorities have observed that appellant made a claim that they had made excess payment in the month of March 2008 but no documentary evidence has been produced. Learned Counsel drew my attention to the letter written by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 does not arise. The impugned order requires the appellant to pay service tax twice on the same service rendered just because they made an advance payment of service tax. In fact, it was a practice in Central Excise department to require the assessee to debit in PLA in the month of March 2008 even in respect of the goods not cleared. Subsequent clearances against these payments can not be called as adjustment. If the assessee makes an advance payment towards service rendered, the service tax cannot be demanded once again. In my view, therefore, it will not be correct to say that this is covered by the provisions of Rule 6 of Service tax Rules, 1994 and therefore the assessee was wrong in adjusting the amount subsequently. In fact it was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of April 2008 and no documentary evidence to support this statement was made. Therefore, I cannot find fault with the conclusion reached by the lower authorities that there was no documentary evidence for excess payment in the month of March 2008. I feel, the original adjudicating authority should have verified the total value of service rendered, amount received towards service rendered and amount of service tax payable in the month of March 2008 and April 2008. If the assessee had made payment of service tax for a service already rendered but amount not received or invoice not raised, that amount is to be treated as an advance paid towards service tax due and does not become excess payment. Under these circumstances, I feel that this is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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