TaxTMI 
TaxTMI 
2018 (4) TMI 1500
X X X X Extracts X X X X
X X X X Extracts X X X X
....The adjustment was sought under Rule 6(3) of Service Tax Rules, 1994 in filing the ST-3 returns. 4. It transpires that the appellant had paid the excess amount of Service Tax during the period April to September, 2011 and October, 2011 to March, 2012 by showing the payment in the monthly returns. Subsequently, the invoices which were issued There cancelled and credit note was given on account of some rebates due to service recipient. The appellant claimed the adjustment of amount of Rs. 2,71,94,170/- on the ground that this has been paid in excess. Lower authorities have issued a demand show-cause notice for the amounts also on the ground that the said adjustment does not fall within the ambit of Rule 6(4B) of Service Tax Rules; they have ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he invoices which were cancelled, would not mean that they have not collected the amount from service recipient and as per the provisions of Rule 6 of the Service Tax Rules, adjustment can be made only if specific amount and the majority of the credit note pertains to the availement of discount and not for rendering any services. 7. On careful consideration of the submissions made by both sides, we find that there is no dispute as to the fact that the appellant had in fact paid an amount of 170/- as Service Tax liability on the Port Services, It is also not in dispute that this amount is not payable by them and has been wrongly paid, for which they made suo motu adjustment in the returns filed for the period April to September, 201 1 and O....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ice and service tax thereon to the person from whom it was received. Appellant claims that appellant has refunded the excess S-T to its customers. We do not agree with the finding of the Commissioner (Appeal) that "this sub-rule is applicable only to the case of excess payment of service tax which can be made good in subsequent period and not to the case where taxable values are not ascertainable for longer period" as sub-rule 6(3) does not say so. We also agree with appellant's contention that sub-rule 6(3) is not dependent on provision of sub-rule 6(4), Moreover there is no time limit prescribed under sub-rule 6(3) for making adjustment." 8. Further, we find that all the provisions on which reliance is placed by the adjudicating aut....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... liberal view of the Rules quoted above, where under the adjustment of the excess service tax paid would be allowed during the later period to the appellant assessee. Here I take the support from the decision of CESTAT, New Delhi in case of General Manager (CMTS) v. CCE, Chandigurh (supra). It is made clear that though this case law of CESTAT, New Delhi talks about excess payment of service tax, the issue was failure to opt for centralized registration under Rule 4(2) of the S.T.R., 1994 by the assessee concerned, [n this decision, CESTAT, Delhi has inter alia held that regarding adjustment against tax liability during other months amount to collection of tax without authority of law contrary to Article 265 of the Constitution of India. Con....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is Rs. 40 lakhs, he has paid lax of R.s. 50 lakhs on the basis of his estimated receipt of rupees jive crores during the month, the excess tax payment of Rs. 10 lakh paid like an advance payment of tax whose incidence has not been passed on to his customers. In fact w.e.f. 1-03-2008, sub-rule (1A) of Rule 6 has been introduced by Notification No. 4/2008-S T., dated 1-3-2008 which also provides that without prejudice to the provisions of' sub-rule (1) of Rule 6, every person liable to pay service tax may, on his pay an amount as service tax in advance to the credit of Central Government and adjust the amount so paid against service tax liability, which he is liable to pay in subsequent period, subject to the condition that he intimates ....