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TMI Blog2010 (3) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... e period 04/06 to 09/06, department noticed that the appellants had short paid - the service tax to the tune of Rs. 72,958/-. It was also noticed that for the period 10/06 to 03/07, the appellants had discharged. Education Cess of Rs 1496/- for 10/06 and Rs. 816/- for 11/06 by adjustment of excess amount paid earlier as cess and reflected the same as Education Cess paid "by adjustment of excess amount paid earlier and adjusted in this period under Rule 6(3) of Service Tax Rules". The department noticed that such adjustments were not available earlier to 1-3-2007 and that appellants being service receiver, cannot avail such adjustment. Accordingly a Show Cause Notice dated 14-8-2007 was issued to recover the said service tax along with inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench in the case of BBC World (I) Pvt. Ltd. v. CST, New Delhi -2009 (14) S.T.R 152 (Tri. Del.) has held that for adjustment of excess credit against short payment provision of Rule 6(3) should be followed in its entirety. She also reiterated the grounds of appeal which are reproduced herein below. "The Commissioner of Central Excise (Appeals) has held that adjustment is allowed under Rule 6(3) of Service Tax Rules, 1994. The said Rule 6(3) of Service Tax Rules, 1994 stipulates that" Where an assessee has paid to the credit of Central Government Service Tax in respect of a taxable service, which is not so provided by him either wholly or partially for any reason, the assessee may adjust the excess Service Tax so paid by him (calculate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount excess paid before March, 2006 for payment of Service Tax during April, 2006 to November, 2006. As such, the order of Commissioner (Appeals), Mangalore is not legally correct. 3. The Commissioner (Appeals), Mangalore has relied on three Tribunal decisions, among which one on the decision of the CESTAT, Delhi in the case of M/s. Nirma Architects and Valuers. v. CCE, Ghaziabad reported in 2006 (1) S.T.R. 305 (Tri.-Del.) and allowed the assessee's appeal. The said decision relied upon by the Commissioner (Appeals), Mangalore in the case of M/s. Nirma Architects and Valuers was accepted by the department only on e for such adjustment of excess paid amount to the short payment & that the appellant have discharged duty liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The relevant rule which provides for such adjustment is Rule 6 (3) which is re produced herein below. "Where an assessee has paid to the credit of Central (3) Government service tax in respect of a taxable service, which is not so provided by him either wholly or partially for any reason, the assessee may adjust the excess service tax so paid by him (calculated on a pro rata basis) against his service tax liability for the subsequent period, if the assessee has refunded the value of taxable service and the service tax thereon to the person from whom it was received". 7. I find that the very same rule was interpreted by the coordinate bench in the cases cited by the learned Commissioner. Nothing is brought to my knowledge that an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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