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2017 (4) TMI 899 - CESTAT NEW DELHI

2017 (4) TMI 899 - CESTAT NEW DELHI - TMI - Adjustment of excess amount of service tax paid - Rule 6(4A) of Service Tax Rules, 1994 - denial on the ground that adjustment is possible only for succeeding month or quarter, whereas in the present case excess amount of service tax paid in the 4th quarter of financial year 2012-2013 and the adjustment of the said excess amount made in 2nd, 3rd and 4th quarter of financial year 2013-2014 - Held that: - reliance placed in the case of M/s. Jubilant Orga .....

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Per Ashok K. Arya The appellant viz. M/s Cello Houseware is in appeal against Order-in-Appeal No.188/2016-17 dated 25.10.2016 whereunder adjustment of service tax paid in excess for the earlier period i.e. 2012-2013 was not allowed for 2nd, 3rd and 4th quarter of financial year 2013. 2. Ld. Counsels for both the sides viz. Shri R.C. Gupta for the appellant and Shri G.R. Singh for the Revenue have been heard. 3. It has been pleaded by the ld. DR for the Revenue that excess payment of service tax .....

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evenue s contention is that adjustment of excess amount is not admissible in terms of Rule 6(4A) of Service Tax Rules, 1994 as the said adjustment is possible only for succeeding month or quarter, as the case may be. 3.1 However, the matter appears to be covered by the CESTAT decision in the case of Jubilant Organosys Ltd. Vs. CCE, Meerut-I - 2015 (38) STR 1230 (Tri.-Del.) and Dell India Pvt. Ltd. Vs. CST, Bangalore - 2016 (42) STR 273 (Tri.-Bang). The Tribunal in the case of Dell India Pvt. Ltd .....

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rictness 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 when one sees the combined effect of the provisions of S.T.R., 1994 just .....

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that the appellant had only one route of claiming this excess payment of service tax by filing a refund claim as per the provisions of Service Tax Rules. However, considering the overall facts on record and the submissions of both the sides, a liberal interpretation and generous view of these Rules quoted above (Service Tax Rules) needs to be taken. I am accordingly taking the combined and liberal view of the Rules quoted above, whereunder the adjustment of the excess service tax paid would be .....

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x 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 p .....

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when the exact amount received during the month, has been determined, the amount of service tax paid on the estimation basis is found to be in excess of his actual tax liability. In fact, in such a situation the excess amount paid by him is like advance payment of service tax during the month in excess of the actual service tax liability and which can always be adjusted against his service tax liability for other months as there is no unjust enrichment angle involved. For example, if against act .....

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ation No.4/2008-S.T., dated 1-3-2008 which also provides that without prejudice to the provisions of sub-rule (1) of Rule 6, every person liable to pay service tax may, on his own, pay an amount 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 E .....

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