2016 (9) TMI 327

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.... Chennai 600 006. 2. Short facts leading to the appeal are that M/s.Bharat Sanchar Nigam Ltd (BSNL), Cuddalore, respondent herein, provides taxable services, under Section 69 of the Finance Act, 1994 and paying service tax regularly. According to the applicant, the respondent has paid service tax, during the period from November 2000 to May 2002, on the value of taxable service, received in one calendar month. They adjusted the Service Tax excess paid, during the previous month with the service tax liability for the subsequent months, contrary to the provisions of the Service Tax Rules 1944. 3. As per Rule 6(1) of the Service Tax Rules, 1994, the service tax, on the value of taxable services received during any calendar month, should ....

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....hat the excess and short payments made by the respondent-BSNL had been adjusted by the Jurisdictional officer and that the respondent has also indicated to the department that they were making payments tentatively, as the exact amount could not be correctly determined and that the excess payment would be adjusted in the subsequent remittance. The respondent-BSNL has also paid the interest, as calculated by the department. Further contention has been made to the effect that the CBEC Board had clarified that the service tax billed and collected may be based on the Finance Contro System of the Telephone Service provider and this system has to be taken for consideration. Having regard to the rival submissions, the appellate authority allowed th....

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....ght in demanding the service tax of Rs. 46.55 Lakhs, for the reason that as per Rule 6, the service tax on the value of the taxable service received during any calendar month should be paid to the credit of the Central Government by 25th of the month immediately following the said calendar month. The respondent had adjusted the service tax paid in excess for certain months against the service tax due to be paid for subsequent months. According to him, such an adjustment is permissible in terms of Rule 6(3), in the case of an assessee, who had paid to the credit of Central Government, service tax in respect of a taxable service, which is not so provided by him either wholly or partially for any reason, provided he has refunded the value of t....

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....He further submitted that the respondent ought to have applied for the refund of service tax in excess for certain months in terms of Section 83 of the Finance Act, 1994, read with Section 11B of the Central Excise Act, 1994, as they cannot suo moto adjust the excess payment of service tax for the subsequent period in terms of rule 6(3). 10. Refuting reliance on the Boards Circular F.No.l49/5/95-CX-4, dated 15.10.1996 and F.No.149/01/99-CX-4, dated 29.01.2001, learned Senior Standing Counsel for the appellant contended that the Boards Circular, dated 15.10.1996 was issued prior to the amendment of Rule 6(1), viz., prior to 16.10.1998. Prior to 16.10.1998, service tax was liable to be paid on the billed amount and from 16.10.1998 onward....

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....t is permissible in terms of Rule 6(3) of the Service Tax Rules, 1994. It is also his contention that BSNL was making payments tentatively, as the current amount could not be correctly assessed and that the excess payments were adjusted in the next remittance. Interest as calculated and communicated by the Income-Tax Department was also paid by the BSNL. He prayed to sustain the impugned orders. Heard the learned counsel for the parties and perused the materials available on record. 12. What is paid by the BSNL, for the period, November' 2000 to May' 2002, deduced from the material on record, is as follows: Sl.No. Month Service Tax Due Service Tax Collected Service Tax paid to the credit of Central Government ....