TaxTMI 
TaxTMI 
2010 (3) TMI 137
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly return filed by them for the period October 2003 to March 2004, the service tax payable in respect of telephone service for the month of February 2004 was Rs.30,79,422/- for taxable value of Rs.3,84,92,775/-. However, they paid a higher amount (Rs.38 lakhs) for the month of February 2004, in two instalments, Rs.28 lakhs on 11.3.2004 and Rs.10 lakhs on 26.3.2004. On 18.9.2005, they filed a refund claim for the excess amount of Rs.7,20,578/- paid by them. The original authority rejected this claim as time-barred and its order was sustained by the Commissioner (Appeals). Hence the present appeal of the assessee. 3. On examination of the records, I find that there was some correspondence between the appellant and the department in r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isions were omitted w.e.f. 10.9.2004). They submitted that it was incumbent on the Asstt./Dy. Commissioner of Central Excise to make a 'best judgment assessment' on the service tax return filed by them, that any such assessment was not made by the authority and that, had any such assessment been made, a refund claim would have been filed within the statutory period of limitation. Apparently, the appellant wanted to say that, in the absence of 'best judgement assessment' under Section 72 then in force, the time-bar provisions of Section 11B would not be applicable. In adjudication of the dispute raised by the assessee, the original authority rejected their refund claim as time-barred inasmuch as the claim was filed on 26.9.2005 only, i.e. af....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sional basis and the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, on receipt of such request, may allow payment of service tax on provisional basis on such value of taxable service as may be specified by him and the provisions of the Central Excise (No.2) Rules, 2001, relating to provisional assessment, except so far as they relate to execution of bond, shall, so far as may be, apply to such assessment. (5) Where an assessee under sub-rule (4) requests for a provisional assessment he shall file a statement giving details of the difference between the service tax deposited and the service tax liable to be paid for each month in a memorandum in Form ST-3A accompanying the quarte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and that this aspect was also mentioned before the Commissioner (Appeals) but the same was not taken into account. The ld. counsel submits that, in the event of the assessments not being accepted as provisional assessments under sub-rules (4) and (5) of Rule 6, adjustment of the amount against future demands of service tax should be allowed under sub-rule (3) for the ends of justice. In this connection, reliance is placed on CCE vs. Sentinel Security (P) Ltd. 2006 (2) STR 520 (Tri-Del.) wherein a similar adjustment under Rule 6(3) was allowed as an equitable relief. 6. Ld. SDR submits that the procedure laid down under sub-rules (4), (5) and (6) of Rule 6 are mandatory and therefore the appellant would not be entitled to claim refund of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the differential amount. In this scenario, the time-bar provisions of Section 11B(1) would be squarely applicable. As rightly found by the lower authorities, the refund claim was filed after expiry of the prescribed period of one year from the relevant date. The claim was rightly rejected as time-barred. 8. With regard to the alternative prayer made by the counsel, I note that this claim was not made before the original authority or properly presented before the appellate authority. The appellant, in a letter dated 31.5.2005, informed the jurisdictional Superintendent of Central Excise that they would be adjusting the amount of Rs.7,20,578/- (excess service tax paid for the month of February 2004) against future demands of service ta....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to sub-rule (3) ibid. The appellant has not even chosen to raise the above plea in the present appeal before the Tribunal. This plea has come from the mouth of their counsel. Ld. counsel has fervently submitted that the case law cited by him should be taken as a precedent and the lower authorities should be directed to consider the plea for adjustment under Rule 6(3). He has also urged that the PSU status of the appellant be taken into account. Rule 6(3) was in force right from the date of introduction of levy of service tax on telephone service. The month of February 2004 is far removed from that date and, therefore, any plea of ignorance or oversight of the relevant rules will not be a valid excuse, particularly for a PSU which must have....