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TMI Blog2014 (12) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant had short-paid service tax to the extent of Rs. 91,31,633/- during December, 2007 and the same was paid while discharging the liability for the month of January, 2008. However, it was found that no interest was paid on delayed payments of tax as required under Section 75 of Finance Act, 1994, in spite of the said facts being brought to the notice of the appellant vide letter dated 6-10-2009. Hence, a show-cause notice was issued to the appellant on 18-12-2009 and 3-2-2010 covering the period October, 2007 to March, 2008 and December, 2007 requiring the appellant to show-cause as to why the interest amounting to Rs. 95,827/- and Rs. 1,00,823/- should not be demanded under the provisions of Section 75 of the Finance Act, 1994. The sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same shall be paid along with interest as provided under Section 75 of Finance Act, 1994; (iv) The appellant was required to comply with the provisions of Rule 6(5) of Service Tax Rules, 1994; and (v) Permission for provisional payment of service tax is applicable from the month of April 2005 onwards (no ending date indicated). The contention of Revenue is that the appellant is liable to pay interest because the application requesting for payment of service tax on provisional basis is made as per the provisions of Section 75 of the Finance Act, 1994 and the same has been specifically mentioned in the letter; the appellant's contention is based on the relevant provisions under the Service Tax Rules and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Service Tax Rules, 1994 and in paragraph 3 of the letter, it was clearly mentioned the provisions of Rule 6(5) of Service Tax Rules, 1994 are to be followed by the assessee which reads as under : "(5) Where an assessee under sub-rule (4) requests for a provisional assessment he shall file a statement giving details of the difference between the service tax deposited and the service tax liable to be paid for each month in a memorandum in Form ST-3A accompanying the quarterly or half yearly return, as the case may be." From the above, it can be seen that Rule 6(5) very clearly speaks of the permission under sub-rule (4) of Rule 6. In these circumstances, the claim of learned AR that this cannot be treated as provisional assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount correctly payable for the previous month and if the amount was in excess, adjust the same in the payment they have to make. In this case, payment was made on a monthly basis and in many cases, they had paid in excess which was adjusted in the next month. After statement was filed in the normal course against the consideration of the order issued which provides for a monthly provisional payment which would mean assessment has also been made on monthly basis, the provisional assessment should have been finalized on monthly basis or within six months as provided under Rule 7(3) of the Central Excise Rules, 2001. Of course, there is no doubt, the Assistant Commissioner would have finalised the assessment for several months together. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. 285 (Tri.-Mum.) = 2011 (269) E.L.T. 415 (Tri.-Mum.)]. In the present case, there is no final assessment order at all and the assessee has paid the interest before final assessment. Therefore, the question of demanding interest does not arise when there is no final assessment order or the full amount of duty has been discharged before final assessment order passed by the proper officer. 8. At this stage, learned C.A. on behalf of the appellant has also mentioned that for the period from April, 2007 to March, 2008, the appellant was entitled to interest refund on excess payment made by them of nearly Rs. 11.45 lakhs for which they have not preferred any claim. 9. In these circumstances, the impugned order has to be set aside on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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