SERVICE TAX COLLECTED TO BE DEPOSITED WITH GOVERNMENT

[Dr. Sanjiv Agarwal]

Section 73A which has been inserted by the Finance Act, 2006, provides that service tax collected from any person has to be deposited with Central Government. The provisions of section 73A shall be applicable only when any excess amount has been collected as service tax from the service recipient. If such amount of service tax is collected which is in excess of service tax assessed or determined or paid on any taxable service, such amount is required to be deposited forthwith to the credit of the Central Government. 'Collection' precedes 'payment. Thus, if no amount of service tax is collected, section 73A is not applicable. Further, such amount should be in excess of service tax determined or assessed.

The literal meaning of 'forthwith' is immediately or without delay; as soon as reasonably can be, without unreasonable delay etc.

Advanced Law Lexicon by P Ramanatha Aujan provides the following interrelations/meaning of the word 'forthwith' -

The dictionary meaning of 'forthwith' is "immediately, at once, without delay or interval." A typical instance of the use of the word cited in the dictionary is : "When a defendant is ordered to plead forthwith, he must plead within twenty-four hours." (Sk. Salim v. The State of West Bengal, 1975 (1) TMI 90 - Supreme Court of India). [See Shorter Oxford English Dictionary, Third Edition, Vol. I, p. 740]. The Interpretation of Statutes 12th Ed., pp. 10 I-I 02].

Where, however, the statute prescribes the payment of money and the accrual of interest thereon at certain points of time, the expression 'forthwith' must necessarily be understood to be immediate or instantaneous. so as to avoid any ambiguity or uncertainty.

The right accrues or liability arises exactly as prescribed by the statute. [Raymond Synthetics Ltd. v. Union of India, 1992 (2) TMI 269 - SUPREME COURT OF INDIA]. It means with all reasonable quickness and reasonable prompt time. [Rao Mahmood Ahmed Khan v. Ranbir Singh. 1995 (2) TMI 359 - SUPREME COURT].

However, the word 'forthwith' should not be construed as to mean "then and there" but means within reasonable time." (Basant Raj v. State, 1994 CrLR Raj 410).

There are a few cases in which "forthwith" has been held to be synonymous with 'immediately' but these are in contexts such as the performance of judicial actions where reasonably practicable would probably amount to the same thing in practice. See for example : R. v Francis, Ca t. Hard 115; Grace v. Clinch, 4 QB 606; R. v. Berkshire Justices 4 QBD 469.

[Occasionally the word "forthwith" means as soon as possible after the occurrence of some specific intervening event expressed or implied from the context. For example, the making of an application (Hancock v. Somes. 28 LJMC 196; Costa v. Hetherington. 28 LlMC 198) or the execution of a reconveyance (Boyes v. Bluck; 13 CB 652)]. (Stroud. 6th Edn..2000)

The word "forthwith" must receive a reasonable construction, and in giving it a construction some regard must be had to the nature of the act or thing to be performed and the circumstances of the case.

The term 'forthwith' means within a reasonable time [Samsnath v. Bhagwat Nath, AIR 1966 All 615, 616. [C.P.C. (5 of 1908), O. XVll, R. 3(a) as amended by Allahabad High Court]

The word 'forthwith' cannot be taken to mean a mandate to decide the suit the same day as a penalty for default. Kurilal Rungta v. Banarsi Devi, 1985 (5) TMI 241 - ALLAHABAD HIGH COURT

Forthwith means immediately or without delay. Kamaxi Kom Bhikku Shetty v. Vaman hippayya Bhattageri, AIR 1976 Kant 3, 4. [C.Pc. (5 of 1908), O. XXI, R. 84(1)]

Maxwell in Interpretation of Statutes (II th Edition) at p. 341 observes as follows:-When a statute requires that something shall be done 'forthwith', it should be probably understood as allowing a reasonable time for doing it. [Bidya Deb Barma etc. v. District Magistrate. Tripura, Agartala, 1968 (8) TMI 187 - Supreme Court of India]

An Act which is to be done forthwith must be held to have been so done, when it is done with all reasonable despatch and without avoidable delay. The term 'forthwith' in S.3(3) cannot mean the same thing as 'as soon as may be' in S. 7, and the farmer is more peremptory than the latter. [Keshav Nilkanth Joglakar v. The Commissioner of Police, 1956 (9) TMI 56 - Supreme Court of India]

Thus, Section 73A can be invoked when -

1. Assessee has collected service tax from the service recipient or service tax has been collected which is not required to be so collected
2. Such service tax has been collected in excess of service tax assessed or determined and paid
3. Service tax having been collected has not been paid as provided in law.

Under sub-section (3), if the amount collected is not paid as required under sub-sections (1) or (2), Central Excise Officer shall serve a show cause notice on the person liable to pay service tax seeking show cause as to why the amount as specified in the show cause notice shall not be paid by him to the credit of the Central Government.

Once the SCN is issued to person liable to pay service tax, Central Excise Officer shall consider the representation or reply to SCN and determine the amount to be paid by him which shall not be more than the amount specified in the SCN. The person liable shall pay the amount so determined.

In terms of sub-sections (5) and (6) of the said provision, amount paid by such person shall be adjusted as follows -

1. Against service tax payable by the person on finalization of assessment or any other proceeding for determination of service tax relating to taxable services.
2. Surplus, if any after afore mentioned adjustment shall be dealt with

1. by way of credit to Consumer Welfare Fund under section 12C of Central Excise Act, 1944,

            or

2. refunded to person who had borne the incidence of such amount as per section 11B of Central Excise Act, 1944.

For refund, application u/s 11B of the Central Excise Act, 1944 shall be made within six months from the date of public notice issued by Central Excise Officer for refund of any surplus amount.