TaxTMI 
TaxTMI 
2023 (1) TMI 992
X X X X Extracts X X X X
X X X X Extracts X X X X
....nance Act, 1994. According to the appellant, during the period June, 2012 they have paid excess service tax of Rs.25,57,778/- for the period April to June, 2012 and later on after more than two years they adjusted the said excess payment for the period April to June, 2014 by disclosing it in their ST-3 return. During Audit the department came to know about the aforesaid adjustment by the appellant and accordingly show cause-cum-demand notice dated 7.12.2016 was issued to the appellant asking to pay the amount of Rs.25,57,778/- alongwith interest and penalty which culminated into the Adjudicating Order dated 24.5.2018 wherein the demand of Rs.25,57,778/- alongwith interest and penalty u/s. 76 and 77 was confirmed whereas penalty u/s. 78 was dropped. Aggrieved, the appellant filed appeal before the Commissioner (Appeals) and the learned Commissioner vide impugned order dated 20.2.2019 rejected the same. 4. Learned Chartered Accountant for the appellant submits that excess tax was paid in the month of June, 2012 which has been adjusted by the appellant later on for the months of April- June, 2014 therefore no illegality has been committed by the appellant and according to learned Cha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons to the notification and such an order is not sustainable as it is beyond the scope of show cause notice. He further submits that denial of adjustment of excess tax payment made is contrary to Article 265 of the Constitution of India. Per contra learned Authorised Representative appearing on behalf of revenue supported the findings recorded in the impugned order and prayed for dismissal of appeal. According to learned Authorised Representative, the appellant initially tried to misled the department by declaring the challan date as 6.7.2014 instead of 6.7.2012 which was filed with the department on 24.10.2014 and failed to give any satisfactory reasons for committing the same. According to him if any excess payment made then the appellant ought to have informed the department with relevant details which they failed to do rather after almost 2 ½ years they suo motu made the adjustment of the alleged excess amount paid which is contrary to the provisions of Rule 6(4A) & 6(4B) ibid. He further submits that the Appellant has failed to furnish any documentary evidence in support of their claim of excess payment. 5. I have heard learned Chartered Accountant for the appellant an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r thereafter else the definition as put forth by learned Chartered Accountant would lead to absurdity. The appellant, prior to adjusting the alleged excess payment on its own, did not inform the department about the same nor provided any documentary evidence except arithmetical calculation about their claim of payment of excess service tax amount which also goes against the claim made by the appellant. It is settled law that a taxing statute has to be strictly construed. The Hon'ble Supreme Court in the case of Commissioner of Sales Tax, U.P. v. Modi Sugar Mills - 12 STC 182 has observed that the Court must look clearly at the words of the statute and interpret them accordingly. While interpreting the taxing statute, the importance has to be given to the clear expression used therein and no intent can be examined in case of any unambiguity in the wordings of the Notification. In my view there is no ambiguity in the wording of Rule 6(4A) ibid. The Hon'ble Supreme Court in the matter of Commissioner of Sales Tax, Uttar Pradesh v. The Modi Sugar Mills Ltd. [AIR 1961 SC 1047/1961 SCR (2) 189] has laid down as under:- '10.......... In interpreting a taxing statute, equitable considera....
X X X X Extracts X X X X
X X X X Extracts X X X X
....yndicate v. IRC, (1921) 1 KB 64, p.71 (ROWLATT, J.)]. Relying upon this passage LORD UPJOHN said : "Fiscal measures are not built upon any theory of taxation." (Commr. of Customs v. Top Ten Promotions, (1969) 3 ALL ER 39, p.90 (HL)." 7. The Hon'ble Supreme Court has taken similar view in large number of cases in respect of Taxing Statutes, which are as follows. A.V. Fernandez v. State of Kerala, 1957 SCR 837; referred to in CIT, Bombay v. Provident Investment Co., 1957 SCR 1141; Gursahai v. CIT, (1963) 3 SCR 893; Banarsi Debi v. ITO (1964) 7 SCR 539; CIT, Gujarat v. Vadilal Lallubhai, (1973) 3 SCC 17; Diwan Brothers v. Central Bank, Bombay, (1976) 3 SCC 800; McDowell & Co. Ltd. v. Commercial Tax Officer, (1977) 1 SCC 441; Mohammad Ali Khan v. Commissioner of Wealth Tax, 1997 (3) SCC 511; Hansraj & Sons v. State of Jammu & Kashmir, (2002) 6 SCC 227 and Geo Miller & Co. (P) Ltd. v. State of M.P., (2004) 5 SCC 209. 8. From the above one thing is clear that one has to look at the words of the statute and interpret them. A Taxing Statute has to be interpreted in the light of what is clearly expressed, it cannot imply anything which is not expressed nor can it merge provisions in the s....