TMI Blog2006 (3) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... neous and as such proposing recovery of the same. 2. As per facts on record appellant claimed refund of service tax paid on gross amount of bills before discount 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 bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as per CBEC's Circular No. B.II/3/98/TRU dt. 7.10.98. The Tribunal's judgment stressed on the event of clearance of the goods on payment of duty. The service tax 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 ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em were refunded to their client i.e. M/s. Emami Ltd. by way of credit to their account and incidence of service tax was not passed on to the client 4. The above contention 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was less than the billed amount, thus entitling the assessee to pay duty at the net amount received after discount. 6. In terms of provisions of Rule 6 (3) of Service 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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