2011 (8) TMI 222 - AT - Service Tax

Demand - Rule 4B(ii) of Rule 6 of Service Tax Rules, 1994 - This is a case of advance payment of service tax for the service already rendered but payment not received. It is settled law that service tax cannot be recovered in respect of the same service twice - In fact, it was a practice in Central Excise department to require the assessee to debit in PLA in the month of March 2008 even in respect of the goods not cleared. Subsequent clearances against these payments can not be called as adjustment. If the assessee makes an advance payment towards service rendered, the service tax cannot be demanded once again - Nevertheless, this was an omission on the part of Central Excise officers but the fact remains that the assessee has only made statement that there was an excess payment in the month of April 2008 and no documentary evidence to support this statement was made - Decided in favor of the assesee by way of remand to adjudicating authority

Summary

Issues:
1. Demand of service tax with interest on the ground of disallowed adjustment of excess payment.
2. Imposition of penalty under Section 76 and 77 of Finance Act, 1994.

Analysis:
1. The appellant claimed to have made an excess payment of Rs. 4,03,307/- in March 2008, which was adjusted in April 2008 due to a procedural error. The appellant argued that the excess payment was due to a mistake in payment calculation based on accrual method for income tax purposes. The appellant cited Rule 4B(ii) of Rule 6 of Service Tax Rules, 1994, allowing adjustment of excess amount paid. However, the lower authorities found no documentary evidence to support the excess payment claim. The Tribunal noted that the appellant's letter to the Superintendent clarified the excess payment issue, but the authorities still proceeded with the demand. The Tribunal concluded that this was not a case of excess payment but an advance payment for services rendered, where adjustment was not required.

2. The Tribunal emphasized that service tax cannot be demanded twice for the same service. The appellant had paid service tax in advance for services rendered in March 2008 but not yet received the payment. The authorities failed to verify the appellant's claim and issued a show cause notice without proper assessment. The Tribunal highlighted the assessing officer's obligation under Section 72 of Finance Act, 1994, to assess taxes accurately and consider evidence provided by the assessee. The Tribunal found that the lower authorities did not adequately verify the total value of services rendered, payments received, and service tax payable for March and April 2008. Consequently, the Tribunal remanded the case for further verification and consideration, emphasizing the need for a well-reasoned order based on all relevant evidence presented by the appellant.

In conclusion, the Tribunal ruled in favor of the appellant, stating that the case warranted a waiver of pre-deposit and remand for a comprehensive review of the payment details. The Tribunal stressed the importance of assessing service tax accurately, avoiding double taxation, and considering all evidence before making a final determination. The remand was intended to allow the appellant to provide necessary documentation to support their claim of advance payment, ensuring a fair and thorough adjudication process.