9911796707
TMI Blog2014 (8) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... d further, in the month of Jan. 2007, they adjusted an amount of Rs. 4,72,907/- against education cess and the appellant had intimated about the said adjustment on 5.3.2007 but the department was of the view that the appellant could not make these adjustments as the appellant were registered under Rule 4(1) of the Service Tax Rules, 1994 and not under Rule 4(2). It is on this basis that the Joint Commissioner vide order-in-original dated 20.03.2008 confirmed service tax and education cess demand of Rs. 3,86,107/- (service tax of Rs. 9,02,000/- + education cess of Rs. 4,72,907/-) against the appellant under Section 73 (1) of Finance Act, 1994 along with interest thereon under Section 75 and besides this, imposed penalty on them under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax paid earlier against their education cess liability for the month of Jan. 2007 to extent of Rs. 4,72,907/-, that this adjustment is permissible to the appellant in terms of Rule 6 (4A) read with Rule (4B), according to which, notwithstanding anything contained in sub-rule (4), where an assessee has paid to the credit of Central Government, any amount in excess of the amount required to be paid towards service tax liability for a month or quarter, as the case may be, he may adjust such excess amount paid by him against his tax liability for succeeding month or quarter subject to the condition that the excess amount paid is on account of reasons not involving interpretation of law, taxability, classification, valuation or applicability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no infirmity in the impugned order. 5. We have considered the submissions from both the sides and perused the records. 6. The only point of dispute in this case is as to whether the assessee during the period of dispute were permitted to adjust excess amount of service tax paid for certain months against their service tax /education cess liability for the subsequent months. There is no dispute that if these adjustments are permitted, there would be no short payment. The department's contention is that for such adjustments under Rule 6(4A) read with Rule 6(4B), the assessee should have obtained centralized registration under Rule 4(2). 7. Rule 6 of the Service Tax Rules deals with the manner of payment of service tax and when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mate on the date of deposit, the actual amount payable for a particular month or a quarter, as the case may be, and according to this rule, he may request the jurisdictional Asstt./Dy. Commissioner for payment of service tax on provisional basis. Sub-rule (4A) provides that notwithstanding anything contained in sub-rule (4), where the assessee has paid to the credit of Central Government any amount in excess of the amount liable to be paid towards the service tax liability in the month/quarter, as the case may be, the assessee may adjust such excess amount paid by him against his service tax liability in subsequent month /quarter and sub-rule (4B) lays down the conditions for such adjustment. The main condition is that the excess payment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice tax liability and which can always be adjusted against his service tax liability for other months, as there is no unjust enrichment angle involved. For example if against actual payments of Rs. 4 crore received by an assessee in a particular month against service provided on which his service liability @ 10% adv. is Rs. 40 lakhs, he has paid tax of Rs. 50 lakhs on the basis of his estimated receipt of rupees five crores during the month the excise tax payment Rs. 10 lakh paid is like an advance payment of tax whose incidence has not been passed on to his customers. In fact, w.e.f. 1.3.2008, sub-rule (1A) of Rule 6 has been introduced by Notification No.4/08-ST dated 1.3.2008 which also provides that without pre-judice to the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 29) whenever there is conflict between a norm in a higher layer in the hierarchy of the laws in the legal system of the country as a norm in a lower layer in the hierarchy, the norm in the higher layer in the hierarchy will prevail. Therefore, if excess payment of tax in a month is not on account of reasons involving interpretation of law, taxability, classification, valuation or applicability of exemption notification and is purely on account of inability of the assessee to exactly determine the total amount collected during the month against the bills raised, as a result of which he had determined his tax liability or estimation basis, the excess amount of tax paid during the month can be adjusted against his tax liability during other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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