TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 1335
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....ged in the provision of general insurance and re-insurance services. As the appellant was not able to determine its tax liability, it sought permission from the Department to pay its service tax liabilities on a provisional basis in terms of rule 6(4) of the Service Tax Rules, 1994 [1994 Rules] read with rule 7 of the Central Excise Rules 2002 [2002 Excise Rules] for the period April 2010 to September 2010. The permission was granted and so the appellant filed returns on provisional basis and, thereafter, on 21.06.2011, the appellant requested the Department to finalize its assessment. The assessment was finalized by an order dated 13.07.2011 wherein it was noticed that the tax liability in the return filed by the appellant was more than the amount reflected in the challans through which such tax was paid. A demand of Rs. 8,71,249/- was, accordingly, confirmed with interest. 3. Feeling aggrieved, the appellant filed an appeal before the Commissioner (Appeals) contending that there was no short payment, as either the challans by which the differential amount were deposited had been overlooked or the excess paid tax during the relevant period had not been properly adjusted. The appe....
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....rvice tax vide the impugned order appears to be incorrect. 9. Therefore, although when one takes the entire period, into consideration and all services rendered by the appellant cumulatively during the material period, there is no short payment, however, when one analyses the Tax-liability month wise and individual service wise, there is short payment in certain months which is adjusted against the payments in other months. Therefore, to that extent, there was delay in payment of the dues in the months mentioned above. Therefore, the appellant is liable to pay interest for the delay in payment of service tax during these months. The original authority is directed to calculate the interest payable on the monthly service tax short/not paid by the appellant for the impugned period, as per provisions of section 75 of the act ibid, and inform the appellant within 30 days of receipt of this order and the appellant will deposit the same forthwith." (emphasis supplied) 5. Pursuant to the aforesaid order passed by the Commissioner (Appeals), the Deputy Commissioner sent a letter dated 12.12.2012, requiring the appellant to deposit an amount of Rs. 47,411/- for the delayed payment of s....
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....7.10.2012 of Commissioner (Appeal) in pursuance to which, the impugned refund claim has been filed by the claimant, reveals that it is an ambiguous order with regard to refund of excess payment of service tax which nowhere states about the refund of said any excess payment of service tax to the claimant and nowhere in the said order, the appellate authority has ordered for any refund claim as claimed by the claimant. It is also revealed from the said order that the claimant has not made any appeal to the appellate authority regarding refund of the excess amount of service tax paid. 2. Whereas perusal of the above it is also revealed that the relevant date of filing refund claim in the cases of finalization of provisional assessment is to be reckoned with the date of the final assessment as per clause B(eb) to of Explanation to the Section 11B of the said Act and not as per clause B(ec) to consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction. The assessment in this case was made vide Assessment Order No. 177/DC/Final Return/10-11/2011-12 dated 13.07.2011 issued by the Depu....
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....nt portion of the order is reproduced below: "1. In view of above, I am of the view that the relevant date of filing refund claim in the cases of finalization of provisional assessment has to be reckoned with the date of the adjustment of duty after final assessment as per clause B(eb) to Explanation to the Section 11B of the CEA and not as per clause B(ec) to Explanation to the Section 11B of the CEA where refund of duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree order or direction. 2. From the forgoing, it is established that the claimant has neither fulfilled the condition or limitation nor passed the test of unjust enrichment as prescribed in Section 11B of the CEA. The refund claim, of Rs. 71,88,514/- (Rupees seventy one lakh eighty eight thousand five hundred and fourteen only), therefore, is not admissible to the claimant under Section 11B of the CEA as made applicable to Service Tax under Section 83 of the Act. Further, the claimant is also not eligible for interest on refund." (emphasis supplied) 9. Feeling aggrieved, the appellant filed an ....
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....he appellant. In this connection, learned counsel pointed out that the data pertaining to collection of premium and tax liability thereon, had to be compiled, reconciled and verified which was not possible on a monthly basis and it is for this reason that the appellant had sought provisional assessment and paid the service tax. However, once the actual receipts were reconciled and it was found that the actual premium collected was lower than the amount of taxable value assessed in the provisional return, there can be no question of passing the tax burden to the customers. 11. Shri Harshvardhan, learned authorized representative appearing for the department, however, supported the impugned order and submitted that it does not call for any interference in this appeal. 12. The submissions advanced by learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 13. Section 83 of the Finance Act makes applicable the provisions of section 11B of the Excise Act to service tax. 14. It would, therefore, be appropriate to reproduce the relevant portion of section 11B of the Excise Act and it is as follows: "11B. Clai....
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....est, may allow payment of service tax on provisional basis on such value of taxable service as may be specified by him an the provisions of the Central Excise (No. 2) Rules, 2001, relating to provisional assessment except so far as they relate to execution of bond, shall, so far as may be, apply to such assessment." 16. It would be seen from the aforesaid provisions of section 11B of the Excise Act that any person claiming refund may make an application for refund of such duty and interest before the expiry of one year from the relevant date. The relevant date has been defined in Explanation (B). In the present case, clauses (eb) and (ec) would be relevant. The relevant date in a case where duty of excise is paid provisionally would be the date of adjustment of duty after the final assessment as is contemplated under clause B(eb) of the Explanation. However, in case where the duty becomes refundable as a consequence of an order or direction of the appellate Tribunal, the relevant date would be the date of order or direction as contemplated under clause B(ec) of the Explanation. In the present case, it is not in dispute that the appellant had made a request for provisional a....