TaxTMI 
TaxTMI 
2024 (12) TMI 468
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....ovided to consulate of Belgium is limited to their premises in New Delhi and Mumbai. Since in the present case the services are provided in Gujarat the exemption is not available and on that count the demand of service tax of Rs.1,60,680/- is confirmed against the Appellant. 3. The Appellant has also provided the business exhibition services to various State Government entities for Vibrant Gujarat Summit 2013, an event organized by Government of Gujarat. The Appellant has raised the invoices charging appropriate service tax on such government entities. However, the said government entities did not pay the consideration, the Appellant issued the credit notes to such government entities. As a result of issuance of such credit notes, whatever the service tax was paid by the Appellant on such invoices was adjusted towards their other service tax liability. The demand of service tax of Rs.38,74,883/- is confirmed against the Appellant on this ground that the Appellant should not have issued the credit notes and should not have adjusted the service tax paid earlier. 4. We have heard Ld. Advocates Mr. Jigar Shah and Mr. Amber Kumrawat for the Appellant and Mr. P. Ganeshan, Ld. Super....
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....t services, under the head 'Commercial or Industrial Construction Services' in the F.Y. 2009-10, was shown in the ST-3 return. However, a credit note dated 31/3/2010 amounting Rs.3, 24,07,774/- which included service tax of Rs.10,65,330/- got missed while calculating the service tax payable. Therefore service tax amounting Rs.10,65,330/- was paid in excess and due to the lapse of statutory time for revising ST-3 return, the same could not be reflected in ST-3 return. Therefore the adjustment was made in subsequent ST-3 return. This fact can be verified from the Balance Sheet of the F.Y. 2009-10 where we have shown the income 24,55,90,004/- under 'Construction and Supervision Charges' which includes Rs.20,83,53,885/- as the taxable service portion, Rs.3,66,89,837/- towards the Exempt services and Rs.5,46,282/- towards the service of 'Maintenance or Repair Services' and which has been duly reflected in the Service tax return as well. Hence, no wrong adjustment and no liability arise." 4.5 Commissioner (Appeals) has in the impugned order referred to the credit note dated 31.03.2010 addressed to their client M/s Vipul IT InfrasoftPvt. Ltd. but have refu....
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....4U Television Network (I) P. Ltd [2014 (35) S.T.R. 88 (Tri. - Mumbai)] Mumbai bench held as follows: "7. In this case, the assessment took place for the period 2001 - 2002 and it was held by the Adjudicating Authority that the appellant has paid excess amount of Service Tax of Rs 9,85,841/- on 11-5-2003. The appellant has adjusted the said amount of excess payment of Service Tax for the period October, 2002 to March, 2003 for the Service Tax liability. The appellant has not collected the excess Service Tax from their clients for the period 2001 to 2002. These facts are not in dispute. In the light of these facts, I have to examine the provisions of Rule 6(3) of the Service Tax Rules, 1994 are applicable to the facts of the case or not. The provisions of Rule 6(3) of the Service Tax Rules, 1994 are reproduced hereunder :- "(3) ......" 8. A plain reading of the said provisions shows that if the assessee has paid Service Tax during the particular period for which they have not provided the service to the client and the said Service Tax paid to the department has been either refunded to the client or not collected, in thatsituation, the excess payment of Serv....
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.... to be verified by the department from the records and the evidence adduced by the appellant in this regard. If, on such verification, it is found that the appellant is not liable to pay any Service Tax, the question of imposition of any penalty also would not arise." D. Hon'ble Punjab and Haryana High Court has in case of Janta Travels (P) Ltd [2009 (13) S.T.R. 488 (P & H)] held as follows: "Whether the Tribunal's order is contrary to the provisions of Rule 6(3) of the Service Tax Rules, 1994 which requires the assessee to fulfil the following conditions for adjustment of the excess service tax so paid : (i) Service Tax paid has been credited to the Central Government. (ii) Services are not provided to the client by the assessee; and (iii) The value of taxable service along with service tax has been refunded to the person from whom it was collected." 2. Briefly, the facts are that the respondent-assessee was carrying on the business of air travel agent. The service provided by such agent was made amenable to levy of service tax vide notification dated 26-7-1997 w.e.f. 1-7- 1997 and an option was given to the agents to pay s....
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.... liability for the subsequent period. For the sake of brevity the Rule 6(3) of the Rules is reproduced below :- "6. Payment of service tax - (3) ......." We find that on going through the Rule 6(3) assessee is eligible to adjust the service tax so paid by him against his service tax liability for the subsequent period if assessee refunded the value of taxable service and service tax thereon to the person from whom it was received. ...." F. In the case of General Manager, Bharat Sanchar Nigam Ltd.[2016 (41) S.T.R. 475 (Tri. - Del.)] Delhi Bench has held as follows: "4. We have considered the contentions of both sides. We find that it is not in dispute that for the amount adjusted by the appellant was actually paid in excess. It is also recorded by the primary adjudicating authority that no value of service or service tax had been realised by the appellant from the customers. In this regard, Rule 6(3) of Service Tax Rules, 1994 is reproduced below : - "......" As is evident from the aforesaid Rule, the appellant was entitled to adjust the service tax paid in excess if it had refunded the value of taxable service and servi....
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....ground on which the extended period of limitation can be invoked. Evidently, fraud, collusion, wilful misstatement and violation of Act or Rules with an intent all have the mens rea built into them and without the mens rea, they cannot be invoked. Suppression of facts has also been held through a series of judicial pronouncements to mean not mere omission but an act of suppression with an intent. In other words, without an intent being established, extended period of limitation cannot be invoked. In Pushpam pharmaceuticals company v. Collector of Central Excise Mumbai1995 (78) E.L.T. 401 (S.C.), the Supreme Court examined Section 11A of the Central Excise Act, 1944 which was worded similar to Section 73 of the Finance Act, 1994 and held as follows: " 4. Section 11A empowers the Department to re open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well ....
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....iability and seeks a notice or an adjudication order. This does not prove any intent to evade or deliberate or wilful suppression of facts. 16. Another ground for invoking extended period of limitation given in the impugned order is that the appellant was operating under self-assessment and hence had an obligation to assess service tax correctly and take only eligible CENVAT credit and if it does not do so, it amounts to suppression of facts with an intent to evade and violation of Act or Rules with an intent to evade. We do not find any force in this argument because every assessee operates under self-assessment and is required to self-assess and pay service tax and file returns. If some tax escapes assessment, section 73 provides for a SCN to be issued within the normal period of limitation. This provision will be rendered otiose if alleged incorrect self-assessment itself is held to establish wilful suppression with an intent to evade. To invoke extended period of limitation, one of the five necessary elements must be established and their existence cannot be presumed simply because the assessee is operating under self-assessment. 17. The argument that the appe....