TMI Blog2012 (5) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... ided etc. but these conditions would apply to a service provider. The appellants in this case were not the service providers but were service recipients. - while the main clause of Rule 6(3) permits the appellants to make adjustment of excess payments made earlier in the subsequent period, the conditions peculiar to the service providers cannot be made applicable in their case. - there is no scope for issuing a second show cause notice dated 18.12.07 by the department. - Decided in favor of assessee. - ST/69/2009 - 365/2012 - Dated:- 17-4-2012 - Dr. CHITTARANJAN SATAPATHY, J. Ms. Uma Maheswari, Adv., for the appellants Shri. Arul, Supdt., for the respondents Heard both sides. 2. The present appeal was allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the CESTAT is liable to be set aside and the matter has to be remitted to the Tribunal for fresh consideration. 8. Accordingly, the substantial question of law raised in this appeal is answered in favour of the Revenue and the order of the CESTAT is set aside and the matter is remitted to CESTAT for fresh consideration. We make it clear that by disposal of this appeal, we have not expressed any opinion on merits and all contentions are left open for both the Revenue as well as the assessee to canvas before the Tribunal. The appeal is allowed. 5. It is seen from the afore-cited observations of the Hon ble High Court that it has not expressed any opinion on merits while observing that the lenient view may be possible depending upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Tax Rules, 1994, they are eligible for adjustment of excess payment during the subsequent period. I find that TNPL happened to pay excess service tax on the closing date of the financial year, since they could not calculate the exact quantum of service tax payable. In order to avoid unnecessary short payment, they adopt the method of excess payment as a precautionary measure. As the Rule 6(3) payment provides for such adjustment, I find no fault from assessee side, especially for the reason that since the adjustment of tax was done for the category of Goods Transport Agency, there is no need to verify the passing-on of service charges as provided in Rule 6(3) of Service Tax Rules, 1994; for the payment is made by TNPL themselves on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present appeal. 7. The Ld. Advocate argues that once having issued the show cause notice on 12.10.06 and having dropped the matter, without filing any appeal against the same, the department was precluded from issuing another notice in respect of the same issue. Secondly, in the order dated 15.08.07, it was clearly held that the appellants were entitled to make adjustment of excess payment under Rule 6(3) of the Service Tax Rules, 1994. Since, this order was not appealed against or reversed, the subsequent adjustment made by the appellants in the month of April, 2007 cannot be called in question which was perfectly in terms of the said order. She argues that in fact when the said order was passed on 15.08.07, the jurisdictional Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y appellant to obtain such a clearance from the Committee on Disputes. 9. He further states that the Order dated 15.08.07 was passed in respect of the show cause notice dated 12.10.06, when no adjustment was made for the excess payment made in the month of March, 2006. Hence, non-review of the said order cannot come in the way of the department from issuing another show cause notice and decide the matter afresh. This argument of the Ld. DR cannot be sustained in as much as the impugned order was issued on 15.08.07, by this time, the adjustment was made in the month of April, 2007 for the excess payment made in the month of March, 2006 and therefore, while passing the said order, the jurisdictional Assistant Commissioner was fully aware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit, took extra care to be on the right side of the law by making extra deposits on the last day of the financial year, so that, they are not charged with payment of less tax than was due from them. Sub-rule (4A) before it was amended on 01.03.07, applied to service providers having centralized registration as rightly pointed out by the Ld. DR and it had no application in the case of the appellants. The subsequent sub-rule (4A) and (4B) came into force with effect from 01.03.07 and that cannot govern the rights of the appellants to make adjustments against excess payment which was made on 31.03.06. That right accrued to them under the Rule 6(3) of the Service Tax Rules, 1994. The said Rule had no stipulation that the adjustment should be m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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