2017 (10) TMI 503

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....l dated 3.1.2006 has been sustained. 2. The brief facts are that: (i) The appellant BSNL provide telephone/telegraph services and are holders of registration certificate for service tax under the category of telephone and telegraph services. (ii) During audit of the records of the appellant, the department noticed that there was huge difference between the amount shown as realized on account of telephone services as accounted in the payment and the amount schedule to have been realized on account of said services in the ST-3 returns filed for the period of April 2002 to February 2004. (iii) The amount declared to have been realized on account of telephone service for the year 2002-03 in the ST-3 return is Rs. 1,47,62,53,980/- an....

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....82,233/- and the service tax to be paid at the rate of 5% was Rs. 1,99,112/-. The differential service tax payable on the same is Rs. 1,20,599/-. Similarly for the year 2003-04 (up to February 2004) the amount declared to have been realised on account of telegraph service in the ST-3 returns was Rs. 10,67,020/- and the service tax paid was Rs. 78,584/- but as per the payment schedule for the said period, the amount actually realised on account of the said service was Rs. 25,84,993/- and the service tax to be paid at the rate of 5% and 8% was Rs. 2,00,022/-. The differential service tax payable on the same is Rs. 1,21,438/-. (vi) The department issued show-cause notice demanding service tax amount of Rs. 2,58,47,681/- under the category o....

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....he adjustment made by the appellant is not sustainable as per Service Tax Rules. (iii) The appellant argues that they are allowed to have adjustment of the excess paid to the short payment under the law. They cite CESTAT Delhi s decision in the case of M/s. Nirma Architects and Valuers vs. CCE, Ghaziabad. 6. After having carefully considered the facts of the case and the submissions of learned DR, it appears that factually there may not be any short-payment of service tax. This case may only be of adjustment of excess payment for subsequent short-payment relying on Rule 6(3) and 6(4) of Service Tax Rules, 1994. Rule 6(3) of Service Tax Rules, 1994 allows adjustment of service tax if paid in excess for the service tax liability for the....