TMI Blog2019 (2) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... - In Central Excise Law there is no such provision for adjustment. In case of excess payment of duty the only option available to the assessee is to apply for refund under Section 11B of the said Act. However, the legislature has made provisions for adjustment of excess tax paid in the Service Tax Rules. This is to facilitate the assessee so as to eliminate the hassles to obtaining the refund. If the assessee has made excess payment, the same can be adjusted towards the liability for subsequent months. The essence of this provision is to help the assessee who has made excess payment to utilize such excess amount to pay up the tax liability for other period. The demand cannot sustain - Appeal allowed - decided in favor of appellant. - ST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and proposing to demand service tax of ₹ 1,77,89,982/- for the period June, 2005 to August, 2005, along with interest and also for imposing penalty. After due process of law, the original authority confirmed the demand along with interest and also imposed equal penalty under Section 78 of the Finance Act, 1994. Aggrieved, appellant is now before this forum. 2.1 On behalf of the appellant, Ld. Consultant, Shri Manoj Chauhan, appeared and argued the matter. He submitted that the appellant is engaged in the business of providing banking, credit card services etc. Prior to 01.04.2005, the liability to pay service tax on the commission received for mutual fund distribution activity undertaken by the appellant was the service provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l.) 2. State Bank of Hyderabad 2016 (43) STR 415 (Tri.-Hyd.) 3. Dell India Pvt. Ltd. 2016 (42) STR 273 (Tri.-Bang.) 4. M/s. Plantech Consultants Pvt. Ltd. 2015 (11) TMI 1356-CESTAT 2.3 It is also argued by the Ld. Consultant that the adjudicating authority has travelled beyond the scope of the SCN. Nothing is alleged in the SCN that the appellant has claimed the reverse charge benefit for the commission amount realized after 01.04.2005 for the services provided prior to 31.03.2005. However, the adjudicating authority has made certain observations indicating that the appellant has received such commissions after 01.04.2005 for the services provided prior to 31.03.2005, which is factually incorrect and beyond the scope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating authority has travelled beyond the scope of SCN. On perusal of SCN it is seen that the allegation is limited to the adjustment made by the appellant. There is no allegation that such adjustment is with regard to the commission received after 01.04.2005 for the services provided prior to 31.03.2005, etc. In the SCN the demand has been raised alleging that the appellant cannot make such adjustment and ought to have filed a refund claim. However, on perusal of the impugned order, we find that the adjudicating authority has made some impasse observations that the commission received after 01.04.2005 is towards the services provided prior to 31.03.2005. Since the SCN does not make any such allegation, such observation made by the adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the adjustment cannot be considered illegal. Even if it is considered that the said procedure of intimating the department is not strictly adhered to, at the most it is only a procedural lapse. At this juncture we would also like to mention that in Central Excise Law there is no such provision for adjustment. In case of excess payment of duty the only option available to the assessee is to apply for refund under Section 11B of the said Act. However, the legislature has made provisions for adjustment of excess tax paid in the Service Tax Rules. This is to facilitate the assessee so as to eliminate the hassles to obtaining the refund. If the assessee has made excess payment, the same can be adjusted towards the liability for subsequent mont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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