TMI Blog2012 (10) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the month when such service was provided. Section 68(3) never provided that the same cannot be paid by the 15th of the month following the end of the month when such service was provided. Thus, if the petitioner deposited such duty with the Government during a particular quarter on the basis of billing without actual collection, he had discharged his liability under sub-section (3) of section 68. Thereafter, on an artificial basis, the Assessing Officer could not have held that he ought to have deposited same amount once all over again in the following quarter. This is fundamentally flawed logic on the part of the Assessing Officer. Further, to accept such formula adopted by the Assessing Officer would amount to collecting the tax f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering services and engages in engineering consultancy. Under the provisions of section 68 of the Finance Act, 1994, the petitioner was required to pay service tax on such services provided by it. Sub-section (2) of section 68 provides that the service tax collected during any calender month, shall be paid to the credit of the Central Government by the 15 th of month immediately following the said calender month. Sub-section (3) of section 68 provides that if any person, responsible for collecting the service tax, fails to collect such tax, he shall notwithstanding such failure, be liable to pay such tax to the credit of the Central Government within 75 days from the end of the month in which the service was rendered. 2.2) Thus, under sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod there was no reflection of actual payment of tax, raised tax demand on such basis. By way of example, if we peruse the assessment order for the quarter ending with September, 1997, the Assessing Officer noted that the service tax payable was ₹ 79,568/-, against which the assessee had paid service tax of ₹ 1,40,083/-. He held that service tax was short paid by ₹ 30,000/-, but was excess paid by ₹ 90,650/-. He accordingly held that the petitioner has paid excess service tax of ₹ 60,515/-. Such is the position emerging in other assessment orders, of course, with difference in actual figures. 3) Interestingly, the department raised demand from the petitioner for service tax, which according to the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner carried the issue in appeal before the Tribunal. The Tribunal, by the impugned order, rejected the appeal. Hence the present petition. 8) The learned counsel for the petitioner raised following contentions: 8.1) That the claims made by the petitioner were not barred by any limitation. He contended that the petitioner's right to claim refund arose only when the Assessing Officer finalized the assessment in terms of Rule 7 of the Service Tax Rules, 1994 (hereinafter to be referred to as the Rules ). 8.2) In this connection, he relied on the decision of the Apex Court in the case of Seraikella Glass Works Pvt. Ltd. Vs. Collector of C. Excise, Patna, 1997 (91) E.L.T . 497 (S.C) and also on the decision of the Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aims were not filed within one year from the payment of such duty, the same were rightly treated as time barred by the Authorities. He further submitted that the question of unjust enrichment is yet to be examined. 10) Having heard the learned counsel for the parties, what emerges from the record is that under sub-section (2) of section 68, the petitioner had to deposit with the Government, service tax collected from the recipient of the service by the 15 th of the month following the end of the month when such service was provided. However, under sub-section (3) of section 68, if such service tax was not collected by the petitioner, he still had to deposit a matching amount with the Government within 75 days from the end of the month wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l collection by the 15 th of the month following the end of the month when such duty is collected. Sub-section ( 3)of section 68 thus provided for an outer limit of 75 days, but never provided that the same cannot be paid by the 15 th of the month following the end of the month when such service was provided. Thus, if the petitioner deposited such duty with the Government during a particular quarter on the basis of billing without actual collection, he had discharged his liability under sub-section (3) of section 68. Thereafter, on an artificial basis, the Assessing Officer could not have held that he ought to have deposited same amount once all over again in the following quarter. This is fundamentally flawed logic on the part of the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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