9911796707
TMI Blog2017 (4) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... equent months cannot be denied on such technical grounds - appeal allowed - decided in favor of assessee. - E/50300/2017-SM - A/52870/2017-SM[BR] - Dated:- 12-4-2017 - Mr. Ashok K. Arya, Member (Technical) Shri R.C. Gupta, Advocate - for the appellant Shri G.R. Singh, D.R. - for the respondent ORDER Per Ashok K. Arya The appellant viz. M/s Cello Houseware is in appeal against Order-in-Appeal No.188/2016-17 dated 25.10.2016 whereunder adjustment of service tax paid in excess for the earlier period i.e. 2012-2013 was not allowed for 2nd, 3rd and 4th quarter of financial year 2013. 2. Ld. Counsels for both the sides viz. Shri R.C. Gupta for the appellant and Shri G.R. Singh for the Revenue have been heard. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the procedure every time and all the time, there could be situations where such rigidness and strictness on the part of the Revenue could become contrary to the provisions of the Article 265 of the Constitution of India. 6.1 Strictly speaking, one can be in general agreement with the pleadings of the learned AR appearing for the Revenue that the present appellant is not strictly covered under those different Rules of S.T.R., 1994 i.e. Rule 6(3), Rule 6(4A), Rule 6(4B) and Rule 6(1A) of the Service Tax Rules, 1994. But when one sees the combined effect of the provisions of S.T.R., 1994 just quoted above, the implications are that the present appellant has to be given the benefit of adjustment of excess service tax paid by them du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Consequently, I am of the considered view that this adjustment of excess payment of service tax, considering the facts on record is admissible to the appellant and more so when we consider the combined effect of the relevant provisions of Service Tax Rules, 1994 quoted above. The CESTAT, New Delhi s decision quoted above in this regard has discussed various provisions of Service Tax Rules, 1994. This discussion make the position more clear for the purpose of present facts. Here to have more clarity, the following is quoted from this decision :- 7.1 Thus sub-rule (4A) read with Rule (4B) (of Service Tax Rules, 1994) would apply to a situation where an assessee on account of his inability to correctly determine the amount received durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition that he intimates the details of the amount paid in advance to the Jurisdictional Superintendent of Central Excise. The excess payment referred to in sub-rule (4A), read with sub-rule (4B), is like advance payment under sub-rule (IA) of Rule 6. There is no condition in Rule 6(4A) read with Rule 6(4B) providing that for availing of the adjustment facility, the assessee must have opted for centralized registration under Rule 4(2). Moreover, when an assessee during certain months, for reasons other than interpretation of law, taxability, classification, valuation or applicability of exemption, has paid service tax in excess of his actual tax liability, the Government cannot retain the excess tax paid by the assessee by refusing its adj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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