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TMI Blog2023 (6) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... vertent error and that in fact they had adjusted only an amount of Rs.66,24,847/-. In the normal course departmental officers have powers to correct an error of clerical or arithmetical nature, which are obvious, apparent or patent as do not admit of any debate or discussion. The original authority however felt that since the ST-3 Returns showed that an amount of Rs.11,47,41,041/- which was greater than the refund amount claimed, has been adjusted under Rule 6(3), no refund could be paid. A question arises that if the appellant had inadvertently or otherwise entered a lesser figure as the value of taxable service and the amount of tax payable in Part B of the ST-3 Return, would the Original Authority be similarly bound? The answer lies in Section 72 of finance act, 1994 which gives power to central excise officer to make best judgment assessment if he finds that the Assessee has filed the service tax return but has failed to assess service tax as per provisions of Finance Act, 1994. Assessment in its broad sense means determination of tax liability. Since Revenue cannot retain any money deposited / collected without the authority of law, excess collection has to be refunded. Rule 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where tax has been paid under a mistake of service tax law are to be filed and decided upon under Section 11B of the Central Excise Act, 1944, subject to the claimant establishing that burden of duty has not been passed on to third parties. The only issue for rejecting the refund claim is a data entry in the ST-3 Return, which when claimed to be erroneous by the appellant was not verified for its correctness just because the original authority mistakenly found himself bound by the legal framework - the appellant s claim was wrongly dismissed without examining the claim based on verifiable facts. Hence the impugned order merits to be set aside. Revenue can however verify the mathematical accuracy in computing the refund claim before sanction - impugned order set aside - appeal allowed. - Ms. Sulekha Beevi C.S., Member (Judicial) and Shri M. Ajit Kumar, Member (Technical) Shri G. Natarajan, Advocate for the Appellant Shri R. Rajaraman, AC (AR) for the Respondent ORDER This appeal is filed by M/s. GAIL India Ltd., Karaikal against Order in Appeal No. 510/2018 (CTA-I) dated 26.9.2018. 2. Brief facts are that the appellants were registered with the Service Tax Department and were enga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it is not evidenced as to whether the amount of Rs.11,47,41,041/- was adjusted fully or not during subsequent periods and also since no amendments or revised returns were filed by the appellant, the balm claim of the appellant that it was a technical error remains largely unsubstantiated and hence cannot be accepted. 9. The appellant has placed reliance on case laws. However, these cases are of different material facts where there were procedural lapses, whereas the case on hand in not one of a procedural or technical lapse, but attempting to derive double benefit by the appellant by seeking refund under section 11B of the Act on one hand, and by taking credit in terms of Rule 6(3) of the Service Tax Rules, 1994 on the other hand. Therefore, the various case laws cited by the appellant are of no relevance to the case on hand. 10. In view of the above, the impugned order is upheld in toto and the appeal of the appellant merits rejection. 3. Aggrieved by the impugned order, the appellant is now before the Tribunal assailing the impugned order. 4. No cross-objections have been filed by Respondent-Department. 5. We have heard Shri G. Natarajan, learned counsel for the appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 6 provides a specific procedure for adjustment of excess service tax paid. Further, the ST-3 returns reflect the position of the service tax as discharged by the appellant. They are also guided by the ACES software in case they make an inadvertent data entry mistake. Further, they are also allowed a period of 90 days within which a revision of any mistake or omission that occurred while filing the ST-3 returns can be corrected. The departmental authorities cannot ignore the provisions of the Act and Rules to sanction the refund. When they are not found eligible as per the prescribed document. He hence prayed that the appeal may be dismissed. 6. We have heard both sides and we find that the only issue involved in the dispute is whether the data entered in the ST-3 Returns will bind the appellant and the act of not correcting an error in time, will close the avenues for a claim of refund, filed subsequently by the appellant. 7. The ST-3 Returns filed by the appellant show that the appellant had adjusted an amount of Rs.11,47,41,041/- under Rule 6(3) of the Service Tax Rules, 1994 towards their service tax liability. The appellant on the other hand claimed that this was an inadv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easoning appears to be not very sound. We find that the Order in Original extensively records the large amount of data submitted by the appellant, including CA s statements to justify their claim. This data has also been examined, as stated at para 8 of the Order in Original and no discrepancies have been noticed based on the data provided. Yet one entry, claimed to be made by mistake by the appellant, in the ST-3 Return has resulted in the claim being rejected. A question arises that if the appellant had inadvertently or otherwise entered a lesser figure as the value of taxable service and the amount of tax payable in Part B of the ST-3 Return, would the Original Authority be similarly bound? The answer lies in Section 72 of finance act, 1994 which gives power to central excise officer to make best judgment assessment if he finds that the Assessee has filed the service tax return but has failed to assess service tax as per provisions of Finance Act, 1994. Assessment in its broad sense means determination of tax liability. Since Revenue cannot retain any money deposited / collected without the authority of law, excess collection has to be refunded. Rule 6 of the Service Tax Rues, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity on the ground that the claim cannot be modified by the appellant to include a totally new ground. While the Commissioner (Appeals) in the impugned order felt that the appellant was seeking a refund claim under section 11 B to derive a double benefit by also taking credit of the same amount. We have examined the table given at para 6 above and find that as per the appellant the total excess service tax paid by was Rs 11,47,41,041/- during the period April 2011 to July 2014. However, they have claimed a refund of Rs 10,54,78,124/- only as stated in para 2 of the impugned order. The balance of Rs 92,62,917/- which was not claimed was due to the fact that Rs 66,24,851/- was adjusted by the appellant under Rule (3) in the October 2014 to March 2015 ST 3 Returns and Rs 26,38,066/- that was not claimed due to being able to produce certificates of non-availment of credit from 3 customers. (Rs 66,24,851/- + Rs 26,38,066/- = Rs 92,62,917/-). It is seen that as per the table the amount of Rs 66,24,851/- was not included in the refund claim of Rs 10,54,78,124/- and no double benefit was claimed. 9. The appellant has now in their appeal before us brought to notice that in a subsequent devel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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