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TMI Blog2011 (8) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... en imposed. 2. Learned counsel drew my attention to the fact that in the month of March 2008, they had made an excess payment of Rs. 4,03,307/-. According to him, this occurred because in the month of March, for the purpose of income tax, accounts were prepared on accrual basis. In case of service tax, the payment is to be made on receipt basis. By mistake, the payment was made on the total amount shown as receipts for the services rendered during the month of March 2008 since this has been worked out on the basis of accrual method. Only in April 2008, the appellant raised bill for service rendered in the month of March and received the amount. Even though, service was rendered in March 2008 itself, invoice for the services rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was an excess payment in the month of March 2008 and this was adjusted in the month of April 2008. However, show cause notice was issued thereafter and proceedings culminated into the present order. 4. I have considered the submissions. This is not a case of excess payment of service tax for reasons indicated in Rule 4B of Rule 6 of Service tax Rules, 1994. None of the reasons for excess payment given in Rule covers this situation. This is a case of advance payment of service tax for the eservice already rendered but payment not received. It is settled law that service tax cannot be recovered in respect of the same service twice. If an advance payment is made, the question of adjustment does not arise. In reality, in the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es since lower authorities have taken a view that assessee did not produce documentary evidence to show that there was excess payment in the month of March 2008. According to Section 72 of Finance Act, 1994 when a person liable to pay service tax fails to assess the tax in accordance with the provisions, the Central Excise officers can ask the person to produce the accounts, documents or other evidence, as he may deem necessary and after taking into account all the relevant material has to make an assessment order. When the assessee replied to Superintendent of Service tax on 11.03.2009 stating that service tax payable in the month of March 2008 was actually less than what was paid, the assessing officer could have called for the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he details of service rendered, invoices raised and payment received for the month and service tax paid for the month of March and April 2008 and show to the adjudicating authority that there was an advance payment for service rendered in March 2008. If it is shown that assessee had paid the tax in advance, in my opinion, no further proceedings would be required against the appellant. However, while remanding the matter, I make it clear that this remand is to be taken as an open remand with all issues open and observations made are only for the purpose of remand. The original adjudicating authority shall be at liberty to consider all the issues and pass a well reasoned order.
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