TMI Blog2015 (11) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 amount which cannot be intention of the law. Similar case, this tribunal is of the view that amount paid in excess because what was required to be paid is nothing but service tax paid in advance. Therefore the same is allowed to be adjusted in subsequent liability of the service tax - appellants case is covered by Rule 6(1A) of Service Tax Rules, 1994 according to which the adjustment of advance payment is permissible against service tax liability in the subsequent period without any limit of the amount, 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within a period of fifteen days from the date of such payment and indicate details of the advance payment made and its adjustment if any in the subsequent return to be filed under Section 70 of the Act. This was not done by the appellant. (b) The adjustment under Rule 6(4A) was claimed and self assessed by the appellant in the ST 3 return filed by them. No revised returns have been filed by the appellant. (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 was of excess payment under Rule 6(3). In the present case the issue pertains to Rule 6(4A) excess payment which needs to be availed subject to conditions under Rule 6(4B) or in alternative Rule (1A) which pertains to advance payment as claimed by the appellant. 5. I hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Rule 6(4A) and 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). From the fact that the appellant have paid service tax in excess to the tune ₹ 2,57,205/- in the quarter ending Dec, 2009, therefore amount the said amount is nothing but advance payment of service tax and as discussed above the condition 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax cannot be demanded once again. In my view, therefore, it will not be correct to say that this is covered by the provisions of Rule 6 of Service Tax Rules, 1994 and therefore the assessee was wrong in adjusting the amount subsequently. In fact it was the assessee's claim that service tax had already been paid in March 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 necessary and after taking into account all the relevant material has to make an assessment order. When the assessee replied to Superintendent of Service tax on 11-3-2009 stating that service tax payable in the month of March 2008 was actually less than what was paid, the assessing officer could have called for the documents and other evidence which he needed to verify to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the other hand, the service tax was paid in excess during the month of March 2007 which has been adjusted towards the service tax liability for the subsequent months. In a way the appellants have paid tax in advance. As such, they cannot be penalized under Section 76 of the Finance Act, 1994 which applies to cases of failure to pay service tax. Hence the penalty imposed under Section 76 is set aside. 2. As regards the penalty of ₹ 1,000/- imposed under Section 77, the learned consultant states that the appellants are not pressing their appeal. Hence the same is confirmed. The appeal is partly allowed in the above terms. The judgments relied upon by the Revenue in the case of Rishi Shipping Vs. Commissioner of Central Excise, Rajkot[2014(33) S.T.R. 595(Tri. Ahmd)] which was followed by Honble apex court judgment in case of CCE, New Delhi Vs. Hari Chand Shri. Gopal[2010(260) E.L.T. 3(S.C.)]. I am of the view that the case of Rishi Shipping(supra) is related to the adjustment of excess amount in terms of Rule 6 (4A) where limit is only ₹ 1 lakh whereas in the present case appellant claimed that adjustment is in terms of Rule 6(1A) therefore the said judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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