TaxTMI 
TaxTMI 
2014 (6) TMI 768
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....ef, as under. 1.1 The appellant are a Government owned company engaged in providing mobile as well as landline telephone services. The Jurisdictional Central Excise officers while examining the appellants ST-3 return for April 2005 to September 2005 period found that during May 2005 as against the service tax payable of Rs. 51,65,746/-, they had paid only Rs. 34,76,958/- and as such there was short payment to the extent of Rs. 16,88,788/-. It was also found that during the same period, the appellant had availed Cenvat credit amounting to Rs. 5,44,691/- in respect of several input services like repair and maintenance, Air and rail travel agents service, rent a cab service, security service, advertising, erection and installation of the ....
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....of the order upholding the confirmation of service tax demand of Rs. 16,65,796/- alongwith interest, the Revenue has filed against the part of the Commissioner (Appeals)'s order setting aside the Cenvat credit demand of Rs. 5,54,691/-. 2. Heard both the sides. 3. Shri Sameer Agarwal, Advocate, the learned Counsel for the appellant, pleaded that service tax demand of Rs. 16,65,674/- has been upheld in respect of May 2005 on the basis that as against the service tax liability of Rs. 51,65,746/- for this month the appellant had paid the service tax of only Rs. 34,76,558/-, that the appellant from the very beginning have been pointing out that there was excess payment of service tax to the tune of Rs. 17,71,998/- during the months of Apri....
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....the learned DR, defended the impugned order confirming the service tax demand of Rs. 16,55,674/- pleading that excess payment of service tax during a particular month cannot be adjusted against short payment of tax during other months even if the excess payment and short payment had taken place during the same six monthly period, that Rule 6 (3) of Service Tax Rules, 1994 sought to be invoked by the appellant has no application as Rule 6 (3) is applicable when some amount has already been collected for some service to be provided and the service tax has been paid, but later on due to some reason, the service is not provided in full or in part, that this rule is not applicable for adjustment of the excess payment of service tax during a part....
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....there is excess payment of tax, it does not mean that the excess paid amount had been recovered from the customers as the service tax has been paid on the estimated bill collection amount and the exact amount of service tax payable is determined only when the accurate figures of collection against the bills are available. When this is the position, there is no reason why the excess payment against a particular month cannot be adjusted against short payment during the other months, as there is no unjust enrichment involved. Therefore, the impugned order upholding the service tax demand of Rs. 16,55,675/- plus education cess of Rs. 33,113/- is not sustainable and thus the appeal filed by M/s Bharat Sanchar Nigam Limited has to be allowed. ....