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TMI Blog2016 (9) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the excess payment of service tax, during the relevant period – matter to be decided by original adjudicating authority within a period of eight weeks, from the date of receipt of a copy of this order – CMA disposed off. - C.M.A. Nos. 709 and 1108 of 2011 - - - Dated:- 10-6-2016 - S. Manikumar And D. Krishna Kumar, JJ. For the Appellant : Mr. V. Sundareswaran For the Respondent : Mr. S. Udayakumar JUDGMENT ( Judgement of this Court was made by S. Manikumar, J. ) The Commissioner of Central Excise, Puducherry Commissionerate, has filed the instant Civil Miscellaneous Appeal, against the Final Order Nos.545 and 546 of 2010, dated 12.05.2010, on the file of Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Chennai 600 006. 2. Short facts leading to the appeal are that M/s.Bharat Sanchar Nigam Ltd (BSNL), Cuddalore, respondent herein, provides taxable services, under Section 69 of the Finance Act, 1994 and paying service tax regularly. According to the applicant, the respondent has paid service tax, during the period from November 2000 to May 2002, on the value of taxable service, received in one calendar month. They adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance Contro System of the Telephone Service provider and this system has to be taken for consideration. Having regard to the rival submissions, the appellate authority allowed the appeal filed by the respondent-BSNL and consequently, set aside the Order-in-Original, dated 30.01.2004. 6. Against the abovesaid order, the appellant has filed an appeal before the CESTAT, Chennai, which has observed that the appellant during the period November, 2000 to May, 2002 had demanded service tax, taking into account, only the shortage of payment of service tax, whereas, the excess amount paid by the respondent had not been considered. Further, the Tribunal was of the view that the respondent-BSNL was required to file only half yearly returns. Based on above observations, the Tribunal upheld the order of the Appellate Authority and rejected the appeal of the appellant. Against which, the Commissioner of Central Excise, Puducherry Commissionerate, has filed the instant Civil Miscellaneous Appeal, raising the following substantial questions of law, (1) Whether the Service Tax paid in excess can be permitted to be adjusted towards the short payment the Service Tax for the subsequent period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested the Deputy Commissioner of Central Excise, Cuddalore nor did the Deputy Commissioner of Central Excise, Cuddalore permit them for payment of Service Tax on provisional basis under the provisions of Rule 6(4) of Service Tax Rules, 1994 and therefore, the suo moto adjustment of excess payment is not correct as per law. He further submitted that the respondent ought to have applied for the refund of service tax in excess for certain months in terms of Section 83 of the Finance Act, 1994, read with Section 11B of the Central Excise Act, 1994, as they cannot suo moto adjust the excess payment of service tax for the subsequent period in terms of rule 6(3). 10. Refuting reliance on the Boards Circular F.No.l49/5/95-CX-4, dated 15.10.1996 and F.No.149/01/99-CX-4, dated 29.01.2001, learned Senior Standing Counsel for the appellant contended that the Boards Circular, dated 15.10.1996 was issued prior to the amendment of Rule 6(1), viz., prior to 16.10.1998. Prior to 16.10.1998, service tax was liable to be paid on the billed amount and from 16.10.1998 onwards, the liability to pay is on the amount of value received. According to him, the learned Appellate Authority has failed to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dec. 00 11,60,325 10,60,000 10,60,000 1,00,325 3 Jan. 01 33,71,903 33,71,903 33,66,900 5,003 4 May 01 29,58,879 29,58,879 22,40,000 7,18,879 5 Jul. 01 27,33,524 27,33,524 27,00,298 33,226 6 Sep. 01 29,56,934 29,56,934 24,95,367 4,61,567 7 Nov. 01 29,15,416 29,15,416 20,00,000 9,15,416 8 Jan. 02 29,95,107 29,95,107 28,00,000 1,95,107 9 May 02 33,90,997 33,90,997 14,45,512 19,45,485 13. Material on record further discloses that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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