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TMI Blog2016 (8) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... gory of excess payment on account of wrong classification, valuation or claiming of an exemption. This is a plain and simple case of payment of tax where no tax is required to be paid as no service was provided on which fact, there is no dispute. Raising only debit notes and not any invoices or bills since the transactions were only with sister concerns – Held that: - the finding in the impugned order that the appellant had not produced any material to substantiate that they had refunded the taxable value including the service tax to their group concerns/clients to which the services had been rendered is not even an allegation in the SCN and therefore not addressed – appeal allowed – decided in favor of appellant. - Appeal No. ST/489/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le service and also not provided any material evidence for having made the refund of the value of the taxable service to their group concerns/clients to whom they rendered the service. Hence a show cause notice was issued to them proposing to demand ₹ 14,58,480/- being service tax and Educational Cess for the month of September 2007 under Section 73(1) of the Finance Act, 1994 along with interest under Section 75 of the Act besides proposing imposition of penalty under Section 76 of the Act. The notice was adjudicated by the Joint Commissioner of Service Tax who, after due process of law, passed OIO No.54/2008 dt. 8.8.2008 confirming the demand of ₹ 14,58,480/- with interest. However, he dropped the proposal for imposing penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that rule cannot override the provision of the Act :- (i) M/s.Pricol Ltd. Vs CCE Coimbatore Final Order No.40006/2015 dt. 5.1.2015 (in Appeal No.ST/335/2011) (ii) Sambhaji Vs Gangabai 2009 (240 ELT 161 (SC) 3.2 On the suo motu adjustment of excess service tax paid, he cites the following decisions :- (i) GM, Telecom, BSNL Vs CCE Raipur 2014-TIOL-1684-CESTAT-DEL (ii) CCE Pondicherry Vs BSNL 2010-TIOL-1051-CESTAT-MAD (ii) GM (CMTS) Vs CCE Chandigarh 2014-TIOL-1422-CESTAT-Del 3.3 He submits that issue being purely technical and no dispute exists on excess payment already made, lenient view is to be taken in this case. He placed reliance on the following Tribunal's decisions :- (i) Narnolia Securities P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity for the subsequent period is permissible and this can be done only when the assessee has refunded the value of taxable service and the service tax thereon to the person from whom it was received; that in the instant case, the appellant had adjusted Suo-Motto an excess amount paid during the period July and August 2007 which amount is not payable as no service is provided. Under similar circumstances the Tribunal in the case of Dell India Pvt. Ltd vs. CST Bangalore, reported in 2016 (42) STR 273 (Tri. Bang.) has held as under : 6. After careful consideration of the facts on record and the circumstances cited by the appellant, when the assessee paid excess amount of tax to the exchequer, law of the land is very clear under Article 265 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberal interpretation and generous view of these rules quoted above (Service Tax Rules) needs to be taken. I am accordingly taking the combined and liberal view of the Rules quoted above, whereunder the adjustment of the excess service tax paid would be allowed during the later period to the appellant assessee. The ruling of the Tribunal in Dell India Pvt. Ltd. (supra) supports the appellant s contention. This is not a case where the amount sought to be adjusted falls under the category of excess payment on account of wrong classification, valuation or claiming of an exemption. This is a plain and simple case of payment of tax where no tax is required to be paid as no service was provided on which fact, there is no dispute. The finding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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