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TMI Blog2022 (12) TMI 1335X X X X Extracts X X X X X X X X Extracts X X X X ..... ch had to pay an excess amount of Rs. 8,71,249/- towards the tax. Against the finalization of the assessment carried out on 21.06.2011, the appellant had filed an appeal before the Commissioner (Appeals) and this appeal was allowed by order dated 17.10.2012. The demand of service tax was set aside for the reason that the appellant had deposited more tax as the chart indicated that the appellant had paid an excess amount of Rs. 71,88,504/- towards the tax liability. The Adjudicating Authority and the Commissioner (Appeals) both calculated the limitation of one year for filing the refund claim under section 11B of the Excise Act from the date of final assessment i.e. 13.07.2011 and, accordingly, rejected the refund claim. Clearly an error was committed in arriving at such a conclusion for no refund could have been claimed by the appellant pursuant to the final assessment made on 13.07.2011 and it is only when the Commissioner (Appeals) passed the order on 17.10.2012 that the refund could be claimed by the appellant. The provisions of clause B (ec) and not (eb) of the Explanation to section 11B of the Excise Act would be attracted to the facts of the present case - the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t permission from the Department to pay its service tax liabilities on a provisional basis in terms of rule 6(4) of the Service Tax Rules, 1994 [1994 Rules] read with rule 7 of the Central Excise Rules 2002 [2002 Excise Rules] for the period April 2010 to September 2010. The permission was granted and so the appellant filed returns on provisional basis and, thereafter, on 21.06.2011, the appellant requested the Department to finalize its assessment. The assessment was finalized by an order dated 13.07.2011 wherein it was noticed that the tax liability in the return filed by the appellant was more than the amount reflected in the challans through which such tax was paid. A demand of Rs. 8,71,249/- was, accordingly, confirmed with interest. 3. Feeling aggrieved, the appellant filed an appeal before the Commissioner (Appeals) contending that there was no short payment, as either the challans by which the differential amount were deposited had been overlooked or the excess paid tax during the relevant period had not been properly adjusted. The appellant pointed out that for the entire period of April, 2010 to September, 2010, there had been excess payment of service tax to the exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of the amount payable by them and has substantiated the same by submitting a chart of Service tax Payable/Paid by them monthwise and the supporting treasury challans submitted by them for the impugned period. I find from the tables and the supporting documents submitted by the appellant that, at the end of the assessment period the appellant have cumulatively paid an amount of tax which is more than what they were required to pay and as such the demand for Service tax vide the impugned order appears to be incorrect. 9. Therefore, although when one takes the entire period, into consideration and all services rendered by the appellant cumulatively during the material period, there is no short payment, however, when one analyses the Tax-liability month wise and individual service wise, there is short payment in certain months which is adjusted against the payments in other months. Therefore, to that extent, there was delay in payment of the dues in the months mentioned above. Therefore, the appellant is liable to pay interest for the delay in payment of service tax during these months. The original authority is directed to calculate the interest payable on the monthly ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14/- (Rupees seventy one lakhs eighty eight thousand five hundred and fourteen only) which may be allowed in our favour. 7. However, a show cause notice dated 26.08.2013 was issued to the appellant stating therein that the refund of service tax would be governed by section 11B of the Excise Act; the said order of the Commissioner (Appeals) was ambiguous with regard to refund of excess payment of service tax nor did the order direct for refund and the claim; the claim was also barred by time as the relevant date for filing refund claim in cases of finalization of provisional assessment has to be reckoned from the date of the final assessment i.e. 13.07.2011 in terms of clause B (eb) of Explanation to section 11B of the Excise Act; and the appellant should also satisfy that the burden of tax had not been passed on to other persons as the provision of unjust enrichment would also be applicable. The relevant portion of the show cause notice dated 26.08.2013 is reproduced below: 1. Whereas perusal of the above said order-in-appeal No. 62/2012 dated 17.10.2012 of Commissioner (Appeal) in pursuance to which, the impugned refund claim has been filed by the claimant, reveals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 17.10.2012 passed by the Commissioner (Appeals) and not because of the assessment order dated 13.07.2011. It was also stated that the appellant could not have filed a refund claim under clause B(eb) of the Explanation to section 11B of the Excise Act. The appellant pointed out that the refund claim was filed within one year of the relevant date, which in the present case would be 17.10.2012, on which date the Commissioner (Appeals) passed the order. The appellant also pointed out that the order passed by the Commissioner (Appeals) was not ambiguous, since the order clearly held that the appellant had paid service tax in excess of what was required to be paid and the demand of service tax of Rs. 8,71,249/- was set aside for this reason. The appellant also submitted that the burden of service tax had not been passed on to the clients. The Commissioner, however, by order dated 31.03.2014 rejected the refund claim for the reason that the claim was not filed within one year from the date of the final assessment order nor the test of unjust enrichment had been satisfied. The relevant portion of the order is reproduced below: 1. In view of above, I am of the view that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CEA 1944. Therefore, the findings of the adjudicating authority that the refund claim is hit by the limitations of provisions of section 11B is upheld. (emphasis supplied) 10. M/s Shagun Arora, learned counsel appearing for the appellant submitted that the refund claim was not barred by limitation as it could only have been filed pursuant to the order passed by the Commissioner (Appeals) on 17.10.2012 and not after the finalization of the assessment on 13.07.2011 and, therefore, in terms of clause B(ec) of Explanation to section 11B of the Excise Act, the claim had been filed within a period of one year. Learned counsel also pointed out that the order passed by the Commissioner (Appeals) was very clear as a categorical finding was recorded that for the relevant period the appellant had cumulatively paid an amount of service tax which was more than what was actually required to be paid. Thus, when excess payment had been identified and acknowledged in the final assessment order, the refund was filed as a consequence of such an order. Learned counsel also submitted that burden of tax had not been passed on by the appellant. In this connection, learned counsel pointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under, the date of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; 15. Rule 6 of the 1994 Rules deals with payment of service tax and the relevant Rules are reproduced below: Payment of service tax. 6. (1) The service tax shall be paid to the credit of the Central Government,- (i) by the 6th day of the month, if the duty is deposited electronically through internet banking; and (ii) by the 5th day of the month, in any other case. xxxxxxxxxxx (4). Where an assessee is, for any reason, unable to correctly estimate, on the date of deposit, the actual amount payable for any particular month or quarter, as the case may be, he may make a request in writing to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, giving reasons for payment of service tax on provisional basis and the Assistant Commissioner of Central Excise or the Deputy Commissioner of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sited more tax as the chart indicated that the appellant had paid an excess amount of Rs. 71,88,504/- towards the tax liability. According to the appellant, the limitation of one year for filing the refund claim under section 11B of the Excise Act would commence from 17.10.2012, as it is this date on which the appellant became entitled to refund of the said amount. This, according to the appellant would be in terms of clause B(ec) of the Explanation to section 11B of the Excise Act for the reason that the duty became refundable as a consequence of the order passed by the Commissioner (Appeals). 18. The Adjudicating Authority and the Commissioner (Appeals) both calculated the limitation of one year for filing the refund claim under section 11B of the Excise Act from the date of final assessment i.e. 13.07.2011 and, accordingly, rejected the refund claim. Clearly an error was committed in arriving at such a conclusion for no refund could have been claimed by the appellant pursuant to the final assessment made on 13.07.2011 and it is only when the Commissioner (Appeals) passed the order on 17.10.2012 that the refund could be claimed by the appellant. The provisions of clause B ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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