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TMI Blog2015 (12) TMI 1555X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax at the earlier rate of 12.36% during the period of April 2009 to August 2009, though the service tax returns for the 6 month period from April 2009 to September 2009 were filed factually on 6-month basis. The appellant subsequently adjusted this excess payment during the later payments of service tax. However in respect of the above adjustment, Revenue states that the appellant was not entitled to make this adjustment on their own, thus this adjustment which Department quantified as Rs. 6,15,083/- treated it as short payment of service tax and issued the show-cause notice for recovery of the same. 2.1 Revenue through its Order-in-Original dated 25-4-2011 issued by Addl. Commissioner confirmed this demand of service tax along with int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their case is covered by Rule 6(3), then the situation can no doubt be covered by Rule 6(1A) which mentions about payment of service tax in advance to the credit of the Central Government; saying that as they have paid service tax on accrual basis (i.e. in advance) without waiting for the receipt of the service tax from their customers, this situation should be treated as payment of service tax in advance and it could be treated as service tax paid in advance and, therefore, adjustment during the subsequent period is allowed as per the provisions of Rule 6(1A) of the Service Tax Rules, 1994. Learned advocate cites in support the decision of the CESTAT, New Delhi in the case of General Manager (CMTS) v. CCE, Chandigarh - 2014 (36) S.T.R. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s excess collection of the amount of tax payable, in order to make the adjustment of excess under Rule 6(4B), certain conditions are to be followed and complied with, which the appellant has not done. 4.3 The learned AR argues further that the subject matter concerning the appellant is also not covered under the provisions of Rule 6(1A) of S.T.R., 1994 as even if when we take the payment of service tax by the appellant as 'advance payment', there have been certain provisos under Rule 6(1A) of the Service Tax Rules, 1994 which have not been complied with by the appellant. He also argues that the case law viz. CCE, Mangalore v. Solaris Chemtech Ltd. (supra) is not applicable to the facts of the appellant as this case is concerned with the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hequer, law of the land is very clear under Article 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 for the Revenue that the present appellant is not strictly covered under those different Rules of S.T.R., 1994 i.e. Rule 6(3), Rule 6(4A), Rule 6(4B) and Rule 6(1A) of the Service Tax Rules, 1994. But whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ESTAT, Delhi has inter alia held that regarding adjustment against tax liability during other months amount to collection of tax without authority of law contrary to Article 265 of the Constitution of India. Consequently, I am of the considered view that this adjustment of excess payment of service tax, considering the facts on record is admissible to the appellant and more so when we consider the combined effect of the relevant provisions of Service Tax Rules, 1994 quoted above. The CESTAT, New Delhi's decision quoted above in this regard has discussed various provisions of Service Tax Rules, 1994. This discussion make the position more clear for the purpose of present facts. Here to have more clarity, the following is quoted from this dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as service tax in advance to the credit of Central Government and adjust the amount so paid against service tax liability, which he is liable to pay in subsequent period, subject to the condition that he intimates the details of the amount paid in advance to the Jurisdictional Superintendent of Central Excise. The excess payment referred to in sub-rule (4A), read with sub-rule (4B), is like advance payment under sub-rule (IA) of Rule 6. There is no condition in Rule 6(4A) read with Rule 6(4B) providing that for availing of the adjustment facility, the assessee must have opted for centralized registration under Rule 4(2). Moreover, when an assessee during certain months, for reasons other than interpretation of law, taxability, classificati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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