TaxTMI 
TaxTMI 
2022 (3) TMI 510
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....Finance Act 1994. 16.2 I order recovery of interest at appropriate rate (as applicable during the material period on the demand of Service Tax confirmed at Para 16.1 above, under the provisions of Section 75 ibid. 16.3 I impose a penalty of Rs. 10,000/-(Rupees Ten Thousand only) on the assessee, M/s Namrata Developers. for their failure to file correct service tax returns, during the period from October 2011 to March 2012, as provided under Section 70 ibid, under the provisions of Section 77(2) ibid. 16.4 Since the penalty is proposed to be imposed under Section 78 of the Act, I refrain from imposing penalty under Section 76 of the Finance Act, 1994 upon M/s Namrata Developers. 16.5 I impose penalty of Rs. 30,60,691/-(Rupees Thirty Lakhs Sixty Thousand Six Hundred And Ninety One Only) M/s Namrata Developers., under Section 78 of the Act. I also give an option as provided under 1st and 2nd proviso to Section 78 of the Act that if the service tax amount along with interest is paid within 30 days from the date of receipt of this order, the noticee is liable to pay penalty equal to 25% of the service tax confirmed at 16.1 above. However, this option ....
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....nt period. They submitted detail list of Agreements along with sample copies of agreement which was wrongly reported in ST-3 and Service tax was paid on entire amount of agreement. • At the time of scrutiny Appellant was only advised that the Service Tax was required to be paid on the receipt/ due basis and not on the agreement basis. After filing of the Service Tax return • Appellant, themselves realized that such change of mode of calculation i.e. shift from calculation on agreement basis/Accrual basis to receipt cum due basis resulted in the wrong computation of the Service Tax liability and wrong reporting in ST-3 returns. • They adjusted the excess amount of the service tax paid by them during the period October 2010 to September 2011, and reflected in the ST-3 returns filed by them during the period October 2011 to March 2012, as indicated in table below: Period Oct'10 to March '11 Apr'11 to Sept'11 Oct'11 to Mar'12 Total Total Tax payable as per actual receipts after abatement 4,33,341 19,65,679 52,64,857 76,63,877 Total Tax paid 11,2....
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.... S.T.R. 249 (Tri. - Ahmd.)] For Issue no. 3- Double Taxation Is Not Permissible, we rely on a. Sanjivani S.S.K. Ltd. [ 2009 (241) E.L.T. 431 (Tri. - Mumbai)] b. Urvi Construction [2010 (17) S.T.R. 302 (Tri. - Ahmd.)] c. Geeta Industries P. Ltd. 2011 (22) S.T.R. 293 (Tri. - Del.) 3.3 Arguing for the revenue learned authorized representative while reiterating the findings recorded in the impugned order, submits:- • Appellant is entitled to avail the benefit of Rule 6(4A) of the Service Tax Rules, 1994 subject to prescribed procedure laid down under the Law. the adjustment of excess amount paid under Rule 6(4A) is subject to the following conditions namely - • Excess amount paid is on account of reasons not involving interpretation of law, taxability, classification, valuation or applicability of any exemption notification. • The details and reasons for such adjustment shall be intimated to the jurisdictional Superintendent of Central Excise within a period of 15 days from the date of such adjustment • Before applying the Rule 6(4A) of the Service Tax Rules, 1994, it is necessa....
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....and subsequently paid along with the interest but prior to issuance of any show cause notice, was sufficient compliance with the provisions of Finance Act, 1994, or the appellant was needed to be proceeded against by the revenue by issuance of the show cause notice and also penalized under Section 78 with an amount equal to the tax short paid. b. Whether appellant was correct in claiming the adjustment of the excess service tax amounting to Rs. 11,72,880/- paid during period October 2010 to September 2011, during the period October 2011 to March 2012. c. Whether extended period can be invoked and penalties imposed on the appellant. 4.3 In respect of issue at "a.", I observe that Section 73 (3) of the Finance Act, 1994 clearly lays down as follows: (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Ex....
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....ns made by the Appellant in their Appeal Memorandum & the Personal Hearings. I find that the issue to be decided is whether the demand raised on the basis of the ST-3 scrutiny for the period April, 2011 to March, 2012 is sustainable? 7.1 I find that the allegation in the instant case is that there was short payment of Service Tax by the Appellants, which was noticed during the scrutiny of ST-3. The Appellant submitted that they had inadvertently paid Service Tax on the gross amount of the agreement. The Appellant submits that on realizing their mistake they have adjusted the excess amount paid - under Rule 6(4A) of the Service Tax Rules, 1994 (hereinafter referred to As STR). From the submissions made by the Appellant, I find that their contention of excess payment of service tax is too weak) Even though they have submitted various documents to substantiate their claim of excess payment of service tax, the said documents are not correlatable For example, the summary of calculation of the service tax liability in tabular form, as mentioned in the service tax returns have been enumerated at Page No. E, G and H of their written submissions. However, the amounts, figures in al....
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.... self adjustment. 7.3 In this regard I place reliance on the decision of the Hon'ble CESTAT in the case of BBC World (I) Pvt. Ltd. Vs. Commr. Of Service Tax. New Delhi, where it was held as under : 4.1 Sub-rule (3) of Rule 6 of the Service Tax Rules, 1994 provides that where an assessee has paid service tax in respect of a taxable service, which is not so provided by him either wholly or partially for any reason, the assessee may adjust the excess service tax so paid by him on pro rata basis, against his service tax liability for the subsequent period, if the assessee has refunded the value of the taxable service and the service tax thereon to the person from whom it was received. Thus the conditions to be satisfied for adjustment of excess payment of service tax during some period against service tax liability for subsequent period are that - (a) the excess payment must be relatable to some service or services not provided for which payment had been received by the service provider; and (b) the payment for the services not provided along with service tax paid on it has been refunded to the person from whom it was received." Rule 6(3) will not b....
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.... received in money, against the service provided" appellant has indicated Rs. 95,059,494/- and have determined his service tax liability on the basis of this taxable value so computed. On page 94, is Annexure H, giving the details of all the 42 agreements entered by the appellant during that period, clearly showing that the this amount is the total agreement value and not the amount received by them during that period. 4.10 From the perusal of the ST-3 returns and the Annexure B and H it is quite evident that the appellant discharged the service tax liability on the agreement value, even without receiving the entire consideration as per the agreement. Subsequently appellant realized their mistake and started filing their ST-3 returns on the basis of Receipt. So the ST-3 return for the period October 2011 to March 2012 was filed by the appellant on the receipt basis. At "F. Value of taxable Service tax payable and gross amount charged (all figures in rupees) for service provider.", is indicated. In the table against, "Total gross Amount received in money, against the service provided" appellant has indicated Rs. 204,560,492/- and have determined his service tax ....
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....wn volition, pay an amount as service tax in advance, to the credit of the Central Government and adjust the amount so paid against the service tax which he is liable to pay for the subsequent period : Provided that the assessee shall, - (i) intimate the details of the amount of service tax paid in advance, to the jurisdictional Superintendent of Central Excise within a period of fifteen days from the date of such payment; and (ii) indicate the details of the advance payment made, and its adjustment, if any in the subsequent return to be filed under section 70 of the Act;] From the above Rule, it is seen that the assessee is permitted to pay service tax in advance and the same can be adjusted against service tax which he is liable to pay for subsequent period provided assessee intimated amount paid in advance to the jurisdictional Superintendent of the service tax within period of 15 days from date of such payment and intimate the details of advance payment made and its adjustment in the subsequent return to be filed under Section 70 of the Act. In the present case there is no dispute that appellant have deposited advance service tax of Rs. 2,57,205/-. As re....
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.... tax for reasons indicated in sub-rule (4B) of Rule 6 of Service Tax Rules, 1994. None of the reasons for excess payment given in Rule covers this situation. This is a case of advance payment of service tax for the e-service already rendered but payment not received. It is settled law that service tax cannot be recovered in respect of the same service twice. If an advance payment is made, the question of adjustment does not arise. In reality, in the month of April, 2008, when the service tax is to be calculated, the value of service rendered should have been indicated as the value of service which was received on which service tax was payable. In respect of service already rendered in March but payment not received even though the assessee was not required to make the payment they had made the payment. In such a situation all they had to do was in the accounts maintained, show that service tax as paid on March for invoice issued in April. Therefore, the question of paying the service tax for the portion of service rendered in March, 2008 again in April, 2008 does not arise. The impugned order requires the appellant to pay service tax twice on the same service rendered just because ....
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....dicating authority should have verified the total value of service rendered, amount received towards service rendered and amount of service tax payable in the month of March, 2008 and April, 2008. If the assessee had made payment of service tax for a service already rendered but amount not received or invoice not raised, that amount is to be treated as an advance paid towards service tax due and does not become excess payment. Under these circumstances, I feel that this is a fit case for waiver of pre- deposit and remand the matter at this stage itself to the lower authorities, so that assessee can produce the details of service rendered, invoices raised and payment received for the month and service tax paid for the month of March and April, 2008 and show to the adjudicating authority that there was an advance payment for service rendered in March, 2008. If it is shown that assessee had paid the tax in advance, in my opinion, no further proceedings would he required against the appellant. However, while remanding the matter, I make it clear that this remand is to be taken as an open remand with all issues open and observations made are only for the purpose of remand. The original ....
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....under sub-rule (2) of rule 4 these rules and has paid to the credit of Central Government any amount in excess of the amount required to be paid towards service tax liability for a month or quarter, as the case may be, for the reason of not receiving details of payments received towards the value of the taxable services at his other premises of offices, the assessee may adjust such excess amount so paid as service tax by his against his service tax liability for the subsequent period and the details of such adjustment shall be intimated to the jurisdictional Superintendent of Central Excise within a period of fifteen days from the date of such adjustment" From the above sub-rule, it is permitted that excess paid service tax for the month or quarter can be adjusted in the next month or quarter. In the present case the excess paid service tax during the period May, 2006 to July, 2006 was adjusted against service tax liability of August, 2006. 6.2 As regard intimation to the Jurisdictional Superintendent of Central Excise regarding the such adjustment, we find that even though appellant have not specifically intimidated to the Superintendent in this regard but adjustment w....