TaxTMI 
TaxTMI 
2019 (11) TMI 1266
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of the area. During the course of audit for the period from April 2016 to June 2016, it was noticed that they had adjusted the excess payment made by them during the period April 2015 to June 2016 in September 2016. The department was of the view that as per Rule 6(4A) of Service Tax Rules, 1994, the excess service tax paid could be adjusted only in the immediate succeeding month or quarter and therefore the adjustment made by the appellant is against the provisions of law. The department, however, allowed adjustment made by the appellant for the period April 2016 to June 2016 holding that the adjustment made is within the time prescribed in the provision. Show Cause Notice was issued proposing to demand an amount of Rs. 9,19,016/- for th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the quarter of September 2016. 2.1 The ld. counsel submitted that the word 'immediate' being absent in Rule 6(4A), the department cannot interpret the provision by adding the word to disallow the adjustment. The department does not have a case that the appellant had collected service tax from the customer or that the burden of service tax has been passed on to another. In any case, the appellant would have been eligible for refund and the adjustment has been made in accordance with the provisions of law. He relied upon the decision of the Tribunal in the case of General Manager (CMTS) Vs. Commissioner of Central Excise, Chandigarh - 2014 (36) STR 1084 (Tri. Del.) to canvass the point that the excess amount paid by an assessee cannot b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ant is not able to make such adjustment in the immediate month or quarter, the option is to file a refund claim for the excess service tax paid. Thus, the appellant cannot adjust the service tax liability to any other succeeding months or quarters. The authorities below have rightly adjusted the excess payment made during April 2016 to June 2016 towards the service tax liability for immediate succeeding quarter in September 2016. The excess amount paid during the period from April 2015 to March 2016 has not been allowed to be adjusted and the demand has been raised only for this period. That the impugned order does not call for any interference. 4. Heard both sides. 5. For better appreciation, Rule 6(4A) of Service Tax Rules, 1994 is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 2016 has been allowed by department to be adjusted in September 2016, holding the view that it is adjusted in the immediate succeeding quarter. However, the excess payments made by appellant from April 2015 till March 2016 was not allowed to be adjusted for which the present demand has been made. The demand therefore does not arise out of short-payment of tax. It arises out of a situation where appellant adjusted his excess payment towards the liability that incurred later. The ld. AR has much stressed that since the word 'month' is followed by the word 'quarter', the Rule has to be interpreted in such a way that the adjustment can be made only in the immediate succeeding month or quarter. 8. In a hypothetical situation, if an assessee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....with a purpose and some meaning must be assigned to it. The intention of having uselessly added surplus words or phrases should never be attributed to the Legislature. It has been authoritatively held by their Lordships of the Supreme Court in J.K. Cotton Spinning and Weaving Mills Co. Ltd. Vs. State of Uttar Pradesh, AIR 1961 SC 1170, that the Courts always presume, while interpreting statues, that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. 39. Keeping the above principles in view we must assume that the Legislature has deliberately used the well-known expression "as the case may be" in the proviso in question with some definite purp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ule, the only interpretation possible is that the assessee can adjust the excess payment to any succeeding month or quarter when he has service tax liability. It has to be borne in mind that such adjustment has to be made within reasonable time. 11. In the present case, the period for which excess payment has been disallowed is from April 2015 to March 2016. Even if the assessee files a refund claim in September 2016, when he realized that there is excess payment, the claim would be well within the time limit under section 11B. Further, it is also brought out from the record that the assessee has not collected service tax from the customer and therefore not passed on the tax burden to another. This being the case, the appellant would be ....