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Chola Business Services Ltd. Versus Commissioner of Service Tax, Chennai

Self adjustment of service tax liability with excess tax paid earlier manpower recruitment and supply agency service - Held that: - the adjustment of excess service tax paid by the appellant to the Central Government for the service not provided by him wholly or partially for any reason against his service tax liability for the subsequent period is permissible and this can be done only when the assessee has refunded the value of taxable service and the service tax thereon to the person from wh .....

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ed order that the appellant had not produced any material to substantiate that they had refunded the taxable value including the service tax to their group concerns/clients to which the services had been rendered is not even an allegation in the SCN and therefore not addressed appeal allowed decided in favor of appellant. - Appeal No. ST/489/2010 - Final Order No. 41389/2016 - Dated:- 19-8-2016 - Shri P.K.Choudhary, Judicial Member Shri Vikram Vijay Raghvan, Advocate For the Appellant Shri .....

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sionerate during November 2007, scrutiny of ST-3 Returns and TR-6 Challans for the period from 2005-2006 upto the half year ending September 2007, profit and loss a/c, invoices and Ledger accounts revealed that they were raising only debit notes and not any invoices or bills since the transactions were only with their sister concerns. It was also noticed that the assessee had short paid service tax of ₹ 14,58,480/- due for the month of September 2007 and they have adjusted the amount of &# .....

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he service. Hence a show cause notice was issued to them proposing to demand ₹ 14,58,480/- being service tax and Educational Cess for the month of September 2007 under Section 73(1) of the Finance Act, 1994 along with interest under Section 75 of the Act besides proposing imposition of penalty under Section 76 of the Act. The notice was adjudicated by the Joint Commissioner of Service Tax who, after due process of law, passed OIO No.54/2008 dt. 8.8.2008 confirming the demand of ₹ 14, .....

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ment of tax subsequently, both the lower authorities have not considered the same. The excess payment of tax of ₹ 14,58,480/- [Rs.5,56,200/- + ₹ 9,02,280/-] during the months of July 2007 & August 2007 is not at all pertaining to service provided by them but purely because of invoicing error and the question of refunding of the same to the recipient does not arise since the recipient has not made any payment for the service as well as the service tax thereon, which is wrongly cla .....

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ay payment of tax. 3.1 He relied on the following case laws on the submission that rule cannot override the provision of the Act :- (i) M/s.Pricol Ltd. Vs CCE Coimbatore Final Order No.40006/2015 dt. 5.1.2015 (in Appeal No.ST/335/2011) (ii) Sambhaji Vs Gangabai 2009 (240 ELT 161 (SC) 3.2 On the suo motu adjustment of excess service tax paid, he cites the following decisions :- (i) GM, Telecom, BSNL Vs CCE Raipur 2014-TIOL-1684-CESTAT-DEL (ii) CCE Pondicherry Vs BSNL 2010-TIOL-1051-CESTAT-MAD (ii .....

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dvance payment and not excess payment as held by the Tribunal in the case of Varun Shipping Co. Ltd. Vs CST Mumbai 2013-TIOL-1550-CESTAT-MUM. Ld. counsel also filed copies of half-yearly ST-3 returns filed with the department for the year 2007-08 showing excess payment of tax. 4. Ld.A.R for the Revenue reiterated the impugned orders. 5. I have carefully gone through the case records and heard the rival contentions at length. The learned Commissioner (Appeals) has observed that as per Rule 6(3) o .....

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ice and the service tax thereon to the person from whom it was received. and the adjustment of excess service tax paid by the appellant to the Central Government for the service not provided by him wholly or partially for any reason against his service tax liability for the subsequent period is permissible and this can be done only when the assessee has refunded the value of taxable service and the service tax thereon to the person from whom it was received; that in the instant case, the appella .....

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ticle 265 of the Constitution of India, which says that No tax shall be levied or collected except by authority of law . If Revenue becomes very rigid on strict compliance of the procedure every time and all the time, there could be situations where such rigidness and strictness on the part of the Revenue could become contrary to the provisions of the Article 265 of the Constitution of India. 6.1 Strictly speaking, one can be in general agreement with the pleadings of the learned AR appearing fo .....

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