TMI Blog2017 (6) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... he extent of net demand if any - For the purpose of verification and determining the net service tax payable, if any, the matter is remanded to the original adjudicating authority. CENVAT credit - disallowance of CENVAT credit on the ground that the credits have been availed in the absence of details of inputs service providers as well as the number and date of the document - scope of SCN - Held that: - it was not open to the adjudicating authority to travel beyond the allegations made in the show-cause notice to deny the credit based on an altogether new ground. As such the impugned order was held to be liable to be set aside on this ground itself. The impugned orders are set aside and matter remanded to the adjudicating authority for denovo decision - appeal allowed by way of remand. - Service Tax Appeal Nos.10 & 166 of 2007 - 20896-20897/2017 - Dated:- 15-6-2017 - Mr. S.S. Garg, Member (Judicial) And Mr. V. Padmanabhan, Member (Technical) Sh. S Ananthan, CA for the assessee Sh. Mohammad Yusuf, DR for the Revenue ORDER Per: V. Padmanabhan These two appeals are filed against the order in original No.72/2005 dated 28.9.2006 and the revised order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of service tax in the months of May, June and September, 2005 in respect of banking and financial services. There have also been short payments during the months of Nov, 2004, February, 2005 to April, 2005, July, 2005 and August, 2005. Likewise in respect of Business Auxiliary services also, excess payments have been made in April, 2005, June, 2005 as well as July, 2005. There have also been short payments in May, 2005, August, 2005 and September, 2005. He submitted that the excess amounts paid have been adjusted towards short paid service tax in the respective ST 3 returns. Once this is done, there is no short payment of Service tax. He relied upon the following case laws to support the argument that such adjustments are permissible, even for the period prior to 16.6.2005 when Rule 6(4A) of the Service tax Rules, 1994 was introduced, such adjustments were permitted. 1) M/s./ Nirantar Security Pvt. Ltd. Vs. CST, Ahmedabad [2014 (5) TMI 578 CESTAT Ahmedabad] 2) CCE, Bhopal Vs. Telecom District Manager, BSNL [2017 (4) TMI 386 CESTAT New Delhi] (ii) The demand for payment of interest is not being contested by the appellant. (iii) Regarding the alleged irregula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s argued by the appellant. 8. We have perused the case laws cited by the appellant. In the Division Bench decision in the case of CCE, Bhopal Vs. Telecom District Manager, BSNL [2017 (47) STR 282 (Tri-Del)] , the Tribunal had occasion to consider a similar dispute. Tribunal has held as follows: The relevant rule which provides for such adjustment is Rule 6(3) which is reproduced herein below. Where an assessee has paid to the credit of Central Government service tax in respect of a taxable service, which is not so provided by him either wholly or partially for any reason, the assessee may adjust the excess service tax so paid by him (calculated on a pro rata basis) against his service tax liability for the subsequent period, if the assessee has refunded the value of taxable service and the service tax thereon to the person from whom it was received . 7. I find that the very same rule was interpreted by the coordinate bench in the cases cited by the learned Commissioner. Nothing is brought to my knowledge that an appeal has been filed and stay has been granted against these three decisions. I specifically find that the decision in the case of CCE, New Delhi v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 with the following observations:- 5.5. As regards the Cenvat Credit availed by the appellant on the service tax paid on the services received, we find that the appellant today produced a certified copy of the statutory auditors, indicating that, on verification of the records it was found that said service tax liability has been paid by the appellant to the service provider. We are of the considered view that once a statutory auditor gives a certificate, the said certificate should be considered as an evidence of substantiation to the claim for eligibility to Cenvat credit. Since, this certificate was produced before us for the first time, we are of the view that this point needs to be considered by the Adjudicating Authority. In view of this, we set aside the demand of reversal of Cenvat credit and remit the matter back to the Adjudicating Authority to arrive at a conclusion on this point only and to reconsider the issue afresh based upon the certificate issued by the statutory auditors of the appellant. Needless to say that the Adjudicating Authority will come to a conclusion after following the principles of natural justice. In the denovo proceedings, the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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