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M/s. Garima Associates Versus Commissioner of Customs, Central Excise, Chandrapur

2015 (11) TMI 103 - CESTAT MUMBAI

Adjustment of advance / excess payment of service tax without intimation - Rule 6(4A) of Service Tax Rules, 1994 - Held that:- Appellant have deposited advance service tax of ₹ 2,57,205/-. As regard the condition provided in the proviso to Rule 6 (1A), it is observed that regarding the excess payment though the specific intimation was not given to the Superintendent, but from facts, it is clear that excess payment was reflected in ST3 returns for the period Oct-Dec 2009 and adjustment ther .....

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nd not under 6(1A) and in terms of Rule 6(4A) the adjustment is allowed only for ₹ 1,00,000/- whereas I observed that the appellant through out from the date of show cause notice maintained that claim for adjustment is under Rule 6(4A).

Intention of the rule is very clear that whatsoever excess amount was paid in advance, the same should be adjusted against forth coming tax liability and if it is not allowed it will amount that government will unjustly enriched with excess amou .....

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mount, therefore the impugned order is not sustainable, hence the same is set aside - Decided in favour of assessee. - Appeal No.ST/86102/13-MUM - Final Order No. A/2271/2015-WZB/SMB - Dated:- 28-7-2015 - Mr. Ramesh Nair, Member (Judicial) For the respondent : Shri. S.R. Nair, Examiner (A.R.) ORDER Per : Ramesh Nair This appeal is directed against Order-in- Appeal No. PVR/249/NGP/2012 dtd. 29/11/2010 passed by the Commissioner (Appeals), Central Excise & Customs, Nagpur, wherein Ld. Commissi .....

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1,00,000/- only and confirmed demand of ₹ 1,57,205/- on the ground that adjustment of more than ₹ 1,00,000/- is not permissible which resulted in short payment of ₹ 1,57,205/- in the quarter ending March 2010. Aggrieved by the said confirmation of demand, the appellant filed appeal before the Commissioner(Appeals), who rejected the appeal and upheld the order in original. Being Aggrieved by the impugned order appellant is before me. 3. When the matter was called for hearing ne .....

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Service tAx [2012 (25) STR 417 (Del.). (d) State of Tamil Nadu Vs. Sri. Swamy and Company [1977 39 STC 85 Mad] 4. Shri. S.R. Nair, Ld. Examiner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further made following submissions. (a) Appellants defence that it is a case of advance payment under Rule 6(4A) is not tenable as conditions prescribed under Rule 6(1A) not fulfilled by the appellant. Rule 6(1A) requires the appellant to intimate the details of t .....

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ant. (c) The case laws relied upon by the appellants are inapplicable to the facts and circumstances of the present case. (d) Reliance is placed on the apex court in case of Hari Chand Gopal (2010(260) ELT 3(SC)] which was followed by the Tribunal in the case of Rishi Shipping Vs. CCE Rajkot (204 (33) STR 595(Tri. Ahd)]. (e) The case law of Mumbai International Airport [2014 (33) STR 308(Tri. Mumbai)] is not applicable to the facts and circumstances of the present case as in that case the issue .....

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arter ending December, 2009. The adjudicating authority allowed the adjustment of ₹ 1,00,000/- in the quarter towards service tax liability and in quarter ending March, 2010 adjustment of the remaining amount of ₹ 1,57,205/- was disallowed. The adjustment of the excess payment is provided under Rule 6(1A) of Service Tax rules which is reproduced below:- Rule 6. Payment of service tax (1) - [(1A) Without prejudice to the provisions contained in sub-rule (1), every person liable to pay .....

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ment made, and its adjustment, if any in the subsequent return to be filed under section 70 of the Act;]18 From the above Rule, it is seen that the assessee is permitted to pay service tax in advance and the same can be adjusted against service tax which he is liable to pay for subsequent period provided assessee intimated of amount paid in advance to the jurisdictional superintendent of the service tax within period of 15 days from date of such payment and to intimate the details of advance pay .....

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justment thereof was reflected in the ST3 returns for the quarter ending March, 2010. The details of these excess amount as well as adjustment was revealed only on the scrutiny of these returns therefore it cannot be said that appellant have not complied with conditions prescribed in the proviso to Rule 6(1A) of Service Tax Rules, 1994. The Adjudicating Authority as well as the Ld. Commissioner(Appeals) have denied the adjustment only on the ground that the case of the appellant is covered under .....

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provided in Rule 6(1A) stand complied with as both the requirements stand fulfilled by way of communication in the form ST 3 returns to the department, even if the procedure was not scrupulously followed. Merely for non observance of the procedure laid down in the rule cannot be made reason for denial of adjustment. I am of the considered view that intention of the rule is very clear that whatsoever excess amount was paid in advance, the same should be adjusted against forth coming tax liabilit .....

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C.C.E. & C., VADODARA 4. I have considered the submissions. This is not a case of excess payment of service tax for reasons indicated in sub-rule (4B) of Rule 6 of Service Tax Rules, 1994. None of the reasons for excess payment given in Rule covers this situation. This is a case of advance payment of service tax for the e-service already rendered but payment not received. It is settled law that service tax cannot be recovered in respect of the same service twice. If an advance payment is ma .....

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that service tax as paid on March for invoice issued in April. Therefore, the question of paying the service tax for the portion of service rendered in March 2008 again in April 2008 does not arise. The impugned order requires the appellant to pay service tax twice on the same service rendered just because they made an advance payment of service tax. In fact, it was a practice in Central Excise department to require the assessee to debit in PLA in the month of March 2008 even in respect of the .....

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ch but their request has not even been considered by the lower authorities since lower authorities have taken a view that assessee did not produce documentary evidence to show that there was excess payment in the month of March 2008. According to Section 72 of Finance Act, 1994 when a person liable to pay service tax fails to assess the tax in accordance with the provisions, the Central Excise officers can ask the person to produce the accounts, documents or other evidence, as he may deem necess .....

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h assessee claimed that they have made wrong assessment, the assessing officer failed to act according to Section 72 of Finance Act, 1994, which requires him to make an assessment when there is mistake. The same would apply for the month of April also. Nevertheless, this was an omission on the part of Central Excise officers but the fact remains that the assessee has only made statement that there was an excess payment in the month of April 2008 and no documentary evidence to support this statem .....

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ceived or invoice not raised, that amount is to be treated as an advance paid towards service tax due and does not become excess payment. Under these circumstances, I feel that this is a fit case for waiver of pre-deposit and remand the matter at this stage itself to the lower authorities, so that assessee can produce the details of service rendered, invoices raised and payment received for the month and service tax paid for the month of March and April 2008 and show to the adjudicating authorit .....

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