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TMI Blog2012 (5) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... ch adjustment as was held in the case of Narnolia Securities Pvt. Ltd. Vs. Commissioner of Service Tax, Ranchi 2008(10) STR 619 (Tri.-Kolkota). I order accordingly and set aside the impugned order including the penalty imposed. (Order dictated and pronounced in the Open Court ) 3. In an appeal filed by the Department, the following question was raised before the Hon ble Madras High Court:- Whether the Tribunal would be justified in allowing the appeal at the instance of the assessee by taking a lenient view for a claim of adjustment only on the ground that the assessee has paid excess amount in advance, without going into the factual aspect in respect of a particular case? 4. The Hon ble High Court while disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were not providing GTA service but they were the recipients of Goods Transport Agents Service. In respect of GTA services, the recipient is required to pay the service tax. For the months of March, 2005 and March, 2006, the appellants were required to pay the appropriate amount of service tax on the last day of March ie., on 31st March. They calculated the actual amount of service tax upto 30th March but for 31st March instead of actual amounts they calculated the average amount of tax and paid the same not to be in default. The appellant found that on both the occasions on 31st March, 2005 and on 31st March, 2006, they have over paid the service tax amounts than where actually due. In respect of over payment made on 31st March, 2005, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no need to demand interest, or no penal proposals are sustainable. Accordingly, I pass the following order. 7. I drop further proceedings contemplated against M/s. TNPL, Pugalur in the notice dated 20.10.2006. 6. The Ld. Advocate appearing for the appellants states that this order clearly states that as per Rule 6(3) of Service Tax Rules, 1994, the appellants were eligible for adjustment of excess payment during the subsequent period and hence there was no fault on the part of the assessee. She further states that this order dated 15.08.07, was not taken up for further appeal and the same attained finality. Subsequently, another proceeding was started in respect of the adjustment made towards excess payment made in March,20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under sub-rule 4(A) that such adjustment should be made in the succeeding month or quarter, as the case may be. The right to make adjustment accrued to the appellants in the month of March, 2006 itself when they made the excess payment and that time there was no stipulation that it should be adjusted in the succeeding month. She also relies on the decision of the CESTAT, Eastern Bench, Kolkata in the case of Narnolia Securities Pvt. Ltd. Vs. CST, Ranchi 2008 (10) STR 619 (Tri.-Kolkata), where such adjustments have been allowed in respect of payments made in excess in December, 2004 for the month of February, 2005. She states that this decision of the Tribunal has been accepted by the department and no further appeal appears to have been f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue another show cause notice on 18.12.07, on an issue which was already covered by the earlier show cause notice dated 12.10.06. I also find the fact that there was a previous adjudication has not been disclosed to the Hon ble High Court in the appeal filed by the department. 10. The Ld. DR further submits that Rule 6(3) is not applicable to the present case and further states that un-amended sub-rule 4(A) was not applicable in the case of the appellants and that sub-rule 4(A) has amended from 01.03.07 applies to the present case in terms of which adjustments can only be made in the subsequent months. He also states that the department was justified in issuing the second show cause notice as it came to know about the adjustments on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . but these conditions would apply to a service provider. The appellants in this case were not the service providers but were service recipients. Hence, in my considered view, 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. Hence, I find that the orders dated 15.08.07 and 20.06.08 passed by the jurisdictional Assistant Commissioner are legal and proper in so far as he holds that the appellants were eligible to make adjustment against excess tax paid by them. The first order having not appealed against has also become final and on the very same issue, there is no scop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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