9911796707
TMI Blog2006 (3) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... ount raised against M/s. Emami Ltd. on the ground that service tax was payable on the gross amount actually charged i.e. after discount. The said refund was sanctioned by the Deputy Commissioner vide his Order dt. 9.10.01 and 29.11.01 and was actually paid to the appellant on 13.12.2001. The Commissioner vide his impugned order has held such refunds to be erroneous on the ground that the same were recovered by the appellant from their customers and the subsequent adjustment by way of credit notes cannot be considered to conclude that the burden of duty has not been passed on to the buyers or the ultimate consumer. As such he has held that grant of refund resulted in unjust enrichment to the appellant and accordingly ordered for recovery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax liability did not arise at the time of rendering of service but after the value of service being realised. Till the payment was received, service tax was not liable to be paid. The realization of the value of service and service tax was not connected to the passing on of the tax burden to the consumer or buyer of service. The Tribunal's observation, therefore, that post clearance adjustments not being the concern of the Central Excise authorities was not applicable in their case. Post clearance transaction in the case of service tax was of utmost importance in determining the service tax liability, unlike Central Excise duty. [ii] As per Rule 6 (3) of Service Tax Rules, 1994, adjustment of service tax paid in excess against the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention of the appellant's have not been accepted by the Commissioner on the ground that the provisions of Section 11B are applicable to Service Tax Rules so far as refund of service tax paid in excess or otherwise is concerned. In the present case appellant had reimbursed the excess service tax paid by them by way of credit notes to their clients. By relying upon the Tribunal's decision, he has held that once the burden of duty has been passed on to the buyer or the ultimate consumer, subsequent reimbursement of the same by way of credit notes will not be of any advantage to the assessee. 5. After considering the submissions made by both the sides, I find that the decisions relied upon by the Commissioner are admittedly in the context o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Tax Rules, a facility is provided for adjusting excess payment of service tax by the assessee where the assessee has paid to the credit of Central Government Services in respect of a taxable service, which is not so provided by him either wholly or partially for any reason. As such, it is clear that the service tax recognizes post clearance transaction by way of refund of value of taxable service and the tax paid thereon. In such a scenario the Tribunal's decision, which are given in the context of Central Excise law, will not apply to service tax matters. Inasmuch as, the appellants have admittedly paid back excess service tax paid by them to their customers, they would be entitled to adjustment of the same in terms of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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