2013 (11) TMI 238 - AT - Service Tax

Adjustment of service tax paid paid in excess - self adjustment under Rule 6(3) of service tax Rules, 1994 - revenue contended that adjustment can be done in respect of the service which is not provided by the service provider and the amount of service tax has been refunded to the person from whom it was received. In the present case the applicants were giving some volume discounts and other rebates and such amounts were adjusted against the payment of service tax for subsequent period, which is not permissible. - Held that - the adjustment is not in respect of services which are not provided rather it is by way of discounts and rebates. In view of this, prima facie the applicants have not made out a case for total waiver of service tax - stay granted partly.

Summary

Issues: Application for waiver of pre-deposit of service tax. Interpretation of Rule 6(3) of the Service Tax Rules, 1994 regarding adjustment of excess service tax paid.

Analysis:
The applicant sought a waiver of pre-deposit of service tax, interest, and penalties totaling Rs.1,64,01,668. The dispute arose from the adjustment of excess service tax paid by the applicant, which was done suo motu based on Rule 6(3) of the Service Tax Rules, 1994. The demand was upheld on the grounds that the adjustment was made for taxable services not provided by the applicant and refunded to the service recipient, which was deemed impermissible.

The contention of the applicant was that the adjustment was made after verification by the Deputy Commissioner of Service Tax, who confirmed various discounts, rebates, and billing discrepancies. The applicant argued that since they refunded the excess service tax collected through credit notes, the adjustment should be allowed, and the demand was not justified.

On the other hand, the Revenue relied on Rule 6(3) of the Service Tax Rules, 1994 to argue that adjustments can only be made for services not provided by the taxpayer and where the service tax has been refunded to the recipient. In this case, the Revenue contended that the adjustments made by the applicant for volume discounts and rebates were not permissible under the rule, leading to a valid demand.

The Tribunal examined Rule 6(3) of the Service Tax Rules, 1994, which allows for adjustment of excess service tax paid only for services not provided by the taxpayer. In this instance, the adjustments made by the applicant were related to discounts and rebates, not unprovided services. Consequently, the Tribunal found that the applicant had not established a case for a complete waiver of service tax. However, considering the circumstances, the Tribunal directed the applicant to deposit Rs.1,00,00,000 within eight weeks. Upon this deposit, the pre-deposit of the remaining dues was waived, and recovery stayed pending the appeal process. Compliance was ordered by a specified date.