TMI Blog2018 (4) TMI 1500X X X X Extracts X X X X X X X X Extracts X X X X ..... of excess payment of service which can be made good in subsequent period and but also to the case where taxable values are not ascertainable for longer period. It was also held that sub-rule 6(3) is not dependent on provision of sub-rule 6(4). Appeal allowed - decided in favor of appellant. - ST/85488/2014 - A/92287/2017 - Dated:- 28-12-2017 - SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL) AND SHRI C.J. MATHEW, MEMBER (TECHNICAL) Shri S.S. Gupta, C.A., for Appellant Shri Dilip Shinde, Asstt, Commissioner for Respondent (AR) Per: M. V. Ravindran This appeal is directed against Order-in-Original No. 13-14 dated 31.10.2013 passed by the Commissioner of Central Excise Service Tax, Raigad. 2. Heard both sides and peruse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they had paid the excess amount of ₹ 2,71,84,170/- during the period in question and has been recorded in the financial accounts. It is his submissions that the adjudicating authority has totally mis-directed the provisions of Rule 6(3) and the Tribunal in similar/ identical case, had liberally interpreted the said provisions. He relies upon the decision of the Tribunal in the case of Central Mine Planning and Design Institute Ltd 2014 (36) STR 328 (Tri-Del). He would also rely upon the decision of the Tribunal in the case of Dell India Pvt. Ltd. - 2016 (42) STR 273 (Tri-Bang) for the proposition that suo motu adjustment of excess paid Service Tax can be made as a holistic reading of provisions of Rule 6(3), 6(4A), 6(4B) and 6(1A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Service Tax Rules whereas Revenue's contention is that Rule 6(3) is not applicable. Rule 6(3) as it existed at the relevant time reads as under: 6(3) Where an assessee has paid to the credit of Central Government service tax in respect of a lax-able 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 the service lax liability 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. On going through this sub-rule, we find the excess amount of service tax paid by the assessee can be adjus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of S. T. R., 1994 just quoted above, the implications are that the present appellant has to be given the benefit of adjustment of excess service tax paid by them during the relevant period i.e. April 2009 to September 2009. Revenue is also in agreement with the fact that there had been excess payment of service tax during the relevant period. The appellant interpreting the above provisions of Service Tax Rules 1994 made the adjustment of this excess payment of service tax during the later period though Revenue pleads 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 submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (414) read with Rule (4B) (of Service Tax Rules, 1994) would apply to a situation M/here an assessee on account of his inability to correctly determine the amount received during a particular month for the service provided, has paid service lax on the basis of his estimation and subsequently, when the exact amount received during the has been determined, the of service tax paid on the estimation basis is found (o 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 lax liability and which can always be adjusted against his service tax liability for other months as there IS no unjust enrichment angle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or applicability of exemption, has paid service lax in excess of his actual tax liability, the Government cannot retain the excess tax paid by the assessee by the refusing its adjustment against his tax liability during other months and refusing adjustment of such excess tax payment during a month against tax liability' during other months and appropriation and retention of the same would amount to collection of tax without the authority of which is contrary for the provisions of Art. 265 of the Constitution of India. As held by the Apex Court in case of Ispat Industries Lid. v. CC, Mumbai reported in 2()06 (2()2) 561 (S.C.Y.) (paras 26 to 29) whenever there is conflict between a norm in a higher layer in the hierarchy of the laws ..... X X X X Extracts X X X X X X X X Extracts X X X X
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