2002 (4) TMI 4 - AT - Service Tax

Stock broker wins appeal for refund of excess Service Tax payment due to procedural errors but successful on grounds of provisional assessment rules.

HARI SHANKAR ALMAL Versus COMMISSIONER OF CENTRAL EXCISE, KOLKATA-I

HARI SHANKAR ALMAL Versus COMMISSIONER OF CENTRAL EXCISE, KOLKATA-I - 2002 (145) E.L.T. 578 (Tri. - Kolkata) Issues:Refund of excess Service Tax payment rejected as time-barred.Analysis:The appellant, a registered stock broker, paid Service Tax under the Service Tax Rules, 1994 from 9-8-94 to 6-6-95. A refund claim of Rs. 34,344.00 was rejected as time-barred by the authorities due to being filed after six months from the date of payment. The appellant argued that the duty was paid provisionally, and the refund claim within six months of finalizing provisional assessment was within the limitation.The appellant requested provisional assessment in a letter to the Revenue, mentioning transactions were on a principal-to-principal basis and Service Tax payment might not be required under the law. Despite paying Service Tax for all months, the appellant asked for provisional assessment. The assessment was completed on 21-1-98, certifying an excess payment of Rs. 34,344.00 from August 1994 to June 1995. The refund claim was filed on 3-3-98 with all necessary documents.Authorities held the claim time-barred due to being filed after six months from payment. The appellant's argument that the tax was paid provisionally was countered by the absence of filing Form ST-3A as required by Rule 6 of the Service Tax Rules, 1994 for provisional assessment. The appellant contended that the non-filing of the memorandum was a procedural error and should not impede the claim.The Tribunal analyzed Rules 6 and 7 of the Service Tax Rules, 1994, highlighting the process for provisional assessment and refund. A recent decision confirmed that refund provisions are governed by Section 11B of the Central Excise Act, 1944. The key dispute was whether the assessments were provisional and the relevant date for filing a refund claim. The appellant's letter in 1994 requested provisional assessment, and the final assessment in January 1998 confirmed the excess payment. The Tribunal cited precedents to establish that the relevant date for refund in provisional assessments is the date of final assessment by the proper officer.Conclusively, the Tribunal set aside the previous order, allowing the appeal and granting consequential relief to the appellant in accordance with the law.