2018 (6) TMI 1360 - AT - Service Tax

Adjustment of excess service tax paid against the service tax due - Rule 6(3) of the STR - whether such adjustment of excess payment of service tax permissible or not? - Held that - The provisions of Rule 6(3) of the STR, 1994 are not applicable in the present case whereas the provisions of Rule 6(4A) and 6(4B) of the Service Tax Rules, 1994 are applicable - Though the provisions of Rule 6(4A) and 6(4B) are inserted subsequently but they are applicable retrospectively considering the fact that the appellant is a public sector undertaking and has paid the entire amount of service tax by way of adjustment of excess payment of service tax towards short payment and there is no further liability on the part of the appellant. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Demand of service tax short paid during specific months, applicability of Rule 6 of the Service Tax Rules, 1994, legality of adjustment of excess service tax payment, imposition of penalties under Sections 76 and 78 of the Finance Act.

Analysis:
The appeal was against an order confirming a demand of service tax short paid during certain months, along with interest and penalties under Sections 76 and 78 of the Finance Act. The appellant claimed to have adjusted excess service tax paid against the due amount, but the Commissioner found the adjustment improper under Rule 6 of the Service Tax Rules, 1994. The Commissioner held that the appellant failed to fulfill conditions under Rule 6(3) and attempted to adjust excess payment improperly. The appellant argued operational difficulties and lack of intent to evade tax, citing precedents like BSNL Vs. CCE, Chandigarh, and Dell India Pvt. Ltd. Vs. CST, Bangalore to support their case.

Upon review, the Tribunal found Rule 6(3) inapplicable to the case, while Rule 6(4A) and 6(4B) were deemed relevant. The Tribunal held that these rules applied retrospectively, considering the appellant's status as a public sector undertaking. It was noted that the appellant had paid the entire service tax through the adjustment of excess payment, with no further liability. The Tribunal concluded that there was no intent to evade tax and cited the precedents mentioned by the appellant to set aside the impugned order as unsustainable in law.

The Tribunal's decision was based on the retrospective application of Rule 6(4A) and 6(4B), the lack of intent to evade tax, and the proper adjustment of excess service tax payment by the appellant. The judgment highlighted the importance of following legal provisions and precedents to determine the legality of tax adjustments and penalties under the Finance Act.