TaxTMI 
TaxTMI 
2023 (1) TMI 804
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....iness Auxiliary Service' and subsequently under the head 'Mining Services'. During the period of dispute October, 2006 to March, 2011, service tax was chargeable under Section 68(2) of the Finance Act, 1994 on 'receipt basis' (cash basis). The appellant was also doing the work of transportation for the same service receiver of coal, from the mine/ dump to the power plant of the service receiver. It was a condition in the contract that service tax shall be paid separately by the receiver of service. It was further stipulated that the service receiver shall pay the amount of service tax only on the production of evidence of payment/ challan by the appellant. Thus, the appellant immediately on raising of the invoice for the services rendered, used to deposit the service tax in advance and annexed the evidence of payment with the invoice, so as to receive the payment for services rendered including the service tax. The appellant booked the service rendered and tax thereon in the return for the subsequent months, when they received the payment. However, due to some clerical error in filling of the ST-3 form, the appellant committed error in properly reflecting the service tax brought fo....
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.... matter to the Tribunal to consider it afresh. The Hon'ble High Court has held that the Tribunal has failed to discuss the relevant provisions and has given a finding on the basis of a chart, which did not form part of the proceedings before the adjudicating authority. The Hon'ble High Court framed the following substantial question of law:- "1. Whether the Tribunal was justified in law in remanding the case to the adjudicating Authority for working out the amount of adjustment claimed by the assessee without recording any finding of assessee's entitlement to adjustment in terms of provisions contained under Rule 6(4)(A) and (4)B of the Service Tax Rules, 1994?" This question has been answered in favour of the Revenue in the ex-parte order of the Hon'ble High Court. 5. Learned Counsel Sh. M. P. Devnath, appearing for the appellant urges that the Impugned Order has confirmed demand of Service tax along with interest and penalty, without appreciating the submissions made by the Appellant. That the conditions required to be fulfilled for availing the adjustment of excess tax in subsequent months is procedural in nature, and failure to comply with the same is required to....
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....ion in the case of Jubilant Organosys Ltd. Vs. CCE 2014 (10) TMI 138- CESTAT Delhi wherein the Department sought to deny adjustment of excess tax under section 6(4A) of Service tax Rules on the ground, prescribed procedure has not been followed. Following the series of decisions settling the issue in favour of the Assessees, the Tribunal allowed adjustment of excess tax. 8.1. Further reliance is placed on the following decisions: - • Gujarat NRE Coke Ltd. Vs. CCE 2012 (6) TMI 581- CESTAT Ahmedabad; • BSNL vs. CCE 2019 (3) TMI 1754 - CESTAT Kolkata; • Larsen & Toubro Ltd. vs. CST 2017 (7) TMI 171 - CESTAT Mumbai . • General Manager vs. CCE 2014 (8) TMI 589- CESTAT Delhi. 9. That in view of the above settled legal position, the Impugned Order is liable to be set aside on this ground alone. 10. It is further submitted that the Appellant had deposited Service tax in advance during the relevant period as certain customers reimbursed tax component of the invoice only after the Appellant furnished evidence of deposit of Service tax. That said facts were explained time and again to the Department, right from the time of audit. Ho....
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.... Excise or the Deputy Commissioner of Central Excise, as the case may be, giving reasons for payment of service tax on provisional basis and the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, on receipt of such request, may allow payment of service tax on provisional basis on such value of taxable service as may be specified by him and the provisions of the Central Excise Rules, 2002, relating to provisional assessment, except so far as they relate to execution of bond, shall, so far as may be, apply to such assessment. (4A) Notwithstanding anything contained in sub-rule (4), where an assessee 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, the assessee may adjust such excess amount paid by him against his service tax liability for the succeeding month or quarter, as the case may be. (4B) The adjustment of excess amount paid, under sub-rule (4A), shall be subject to the following conditions, namely: (i) excess amount paid is on account of reasons not involving interpretati....
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....74 (Bom.). 17. That since it is undisputed that tax already stands paid on the services rendered, the same cannot be demanded again. It is settled law that the same transaction cannot be taxed twice. Reliance in this regard is placed on the decisions in the case of Laxmipat Singhania vs. CIT, U.P. 1969 (72) ITR 291; Mahaveer Kumar Jain vs. CIT, Jaipur [2018] 404 ITR 738 (SC). 18. It is further submitted that extended period is not invokable and penalty is not leviable in the instant case as the Impugned Order has not found any evidence of suppression, positive act of evasion etc. at the end of the Appellant. In any case, when excess tax stands deposited by the Appellant, which is clearly evident from the ST-3 returns filed by the Appellant, the Impugned Order is completely incorrect in law in applying the extended period of limitation and the penalty provisions against the Appellant. Reliance is placed on the decision given in the matters of Tamil Nadu Housing Board vs. CCE 1994 (74) ELT 9 (SC), CCE vs. Chempar Drugs & Liniments 1989 (40) ELT 276 (SC), CCE vs. HMM limited 1995 (76) ELT 497(SC). 19. Accordingly, prays for allowing the appeal with consequential benefits. ....
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.... Month ST payable as per ST-3 ST paid Excess payment Short payment October, 2006 38,29,947/- -- -- 38,29,947/- November, 2006 47,37,486/- 1,74,57,238/- 1,27,19,752/- -- December, 2006 73,61,932/- 46,59,251/- -- 27,02,681/- January, 2007 73,55,844/- 51,42,197/- -- 22,13,647/- February, 2007 36,78,608/- 58,36,931/- 21,58,323/- -- March, 2007 42,54,521/- 60,64,011/- 18,09,490/- -- Total 1,66,87,565/- 87,46,275/- Period April, 2007 to March, 2008 Month ST payable as per ST-3 ST paid Excess payment Short payment April, 2007 19,42,975/- -- -- 19,42,975/- May, 2007 38,49,495/- 67,32,267/- 28,82,772/- -- June, 2007 72,33,043/- 32,15,174/- -- 40,17,869/- July, 2007 26,01,149/- -- -- 26,01,149/- August, 2007 68,16,203/- 1,07,75,346/- 39,59,143/- -- September, 2007 48,52,855/- -- -- 48,52,855/- October, 2007 45,57,024/- 49,47,402/- 3,90,378/- -- November, 2007 86,44,184/- -- -- 86,44,184/- December, 2007 80,24,680/- 1....
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....tion prescribed under Rule 6(1A), 6(4A) and 6(4B) of Service Tax Rules. 26. We further find that the ld. Commissioner erred in observing that appellant failed to comply with the mandatory provision of Rule 6 and hence cannot get the benefit of payment of advance tax and the same have been erroneously treated as excess service tax paid. We further hold that the nature of payment of tax has to be determined on the date of payment. Such nature cannot be modified by Revenue, there being no such procedure available to it. Admittedly, in the facts of the present case, appellant have paid tax in advance at the time of raising of invoice and thereafter disclosed the payment as per Section 68(2) of the Finance Act, 1994, on receipt basis, when they received payment subsequently. We further find that inspite of appreciating (by the court below) that appellant have paid excess tax, which was in the nature of advance tax and the same was not adjusted due to clerical mistake on the part of the appellant, have failed to give adjustment of the tax and have raised frivolous demand, which is wholly against the provisions of Article 265 of the Constitution of India. Under the spirit of Article 26....
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....ing authority for working out the amount of adjustment claimed by the assessee without recording any finding of assessee's entitlement to adjustment in terms of provisions contained under Rule 6(4A) and 4B of the Service Tax Rules, 1994?" 31. Therefore, in my opinion, the case has to be examined with respect to the assessee's entitlement to adjustment as per Service Tax Rules 6(4A) and (4B) as directed by the High Court because CESTAT is bound by the judgment of the High Court and cannot go beyond it and say that Rule 6(4A) and (4B) do not apply to the case at all and adjustment can be done under some other Rule. It also needs to be noted that the SCN and the impugned order were also issued invoking Rules 6(4A) and (4B) and not under some other Rules. 32. The text of the Rule 6 reads as follows: 6. Payment of service tax (1) The service tax shall be paid to the credit of the Central Government,- (i) by the 6th day of the month, if the duty is deposited electronically through internet banking; and (ii) by the 5th day of the month, in any other case, immediately following the calendar month in which the service is deemed to be provided as per the rules framed....
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.... amount in excess of the amount required to be paid towards service tax liability for a month or quarter, as the case may be, the assessee may adjust such excess amount paid by him against his service tax liability for the succeeding month or quarter, as the case may be. (4B) The adjustment of excess amount paid, under sub-rule (4A), shall be subject to the following conditions, namely- (i) excess amount paid is on account of reasons not involving interpretation of law, taxability, valuation or applicability of any exemption notification; (ii) excess amount paid by an assessee registered under sub-Rule(2) to Rule4 on account of delayed receipts of details of payments towards taxable services may be adjusted without monetary limit. (iii) In cases other than specified in clause (ii) above, the excess amount paid may be adjusted with a monetary limit of Rupees fifty thousand for the relevant month or quarter, as the case may be. (iv) 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. Subsequently, revised to Rupees one lakh from 1.3.2008 and R....
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....all, AIR 1956 SC 35, p. 38; Commissioner of Income-tax, New Delhi v. M/s. East West Import & Export (P.) Ltd., Jaipur AIR 1989 SC 836, p.838.] In construing the words 'distinct matters' occurring in section 5 of the Stamp Act, 1899 and in concluding that these words have not the same meaning as the words 'two or more of the descriptions in Schedule 1' occurring in section 6, VENTAKATA RAMA AIYAR, J. observed: ' when two words of different import are used in a statute in two consecutive provisions, it would be difficult to maintain that they are used in the same sense." [Member, Board of Revenue v. Arthut Paul Bentall, AIR 1956 SC 35, p. 38] 35. I disagree with my learned brother in his finding that even if it is not Advance Tax under Rule 6(1A) the appellant would get covered under Rules 6(4) and 6(4A). A plain reading of Rule 6(4) shows that it deals with provisional assessment which is not the case here. Rule 6(4A) deals with the adjustment of tax paid in excess in one month in the subsequent month. However, Rule 6(4A) must be read with Rule 6(4B) which says that such adjustment will be subject to some conditions specified in it. In my view, while the appellant's case....
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....t to the Government which is answerable to it. After the Rules are notified, it is a standard practice to place a copy before each house of the Parliament with a Memo which are then examined by the Committee on Subordinate Legislation of each house to ensure that the Rules are within the powers delegated to the Government. It is not within the powers of this Tribunal to either make Rules or modify them or enlarge their scope, even if it appears desirable in the interests of justice or equity. If the Rules place some conditions or monetary limits for adjustments, it is not open for the Tribunal to change them or relax them. The Tribunal has to apply the Act and Rules as they exist. In this case, it is a matter of record that the procedures prescribed under Rule 6(4B) as applicable during the relevant period were not followed. It is also a matter of record that the excess payment of tax in different months was several times - in one case over a hundred times- the limits set in Rule 6(4B). 39. Therefore, I find that: a) the appellant's case is one of excess payment of tax under Rule 6(4A) and not a case of advance payment of tax under Rule 6(1A); b) the appellant has not foll....