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TMI Blog2024 (7) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... ENVAT Credit Rules which is not the case here. The adjudicating authority has also decided the matter considering the adjustment of excess paid Service Tax. Therefore, it is apparent from the grounds of appeal that the appeal filed by the revenue is absolutely on wrong footing. Therefore, the order of the commissioner appeal also passed assuming the issue is of wrong availment of CENVAT Credit is completely vitiated and not maintainable on this ground alone. Moreover, on the facts of the case there is excess payment of Service Tax on the same service therefore the excess amount of Service Tax paid either by service recipient or by the appellant either needs to be refunded or the same may be allowed as adjustment in the future tax liability. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the department for adjustment of excess paid Service Tax against the subsequent liability of Service Tax instead of claiming the refund, the refund claim was returned by department on 29.06.2012, citing reason that since the 50% Service Tax was paid by the RAI (Retailer Association of India) is as per the interim order dated 14.10.2011 by the Hon ble Supreme Court, the said amount cannot be allowed to be adjusted or refunded. The appellant have adjusted the excess paid Service Tax for amount of Rs. 32,67,727/- against the periodical Service Tax liability. The show cause notice was issued demanding the Service Tax of Rs. 32,67,727/- against the short paid Service Tax as the same amount adjusted by the appellant was not allowed. The Adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintainable before the Commissioner appeal. He placed reliance on this Tribunal decision in the case of Commissioner of Customs, Central Excise and Service Tax vs. Ms. EWDPL 2020(10) TMI 291- CESTAT New Delhi. 3. Shri Ajay Kumar Samota, learned Superintendent (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the records. We find that there is no dispute that there is excess payment of Service Tax including 50% payment made by the service recipient 100% Service Tax was paid by the appellant therefor, almost 1/3rd of the payment of Service Tax made is in excess. In the revenue s appeal entire ground was made assuming that appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. Therefore, the said amount was also born by the appellant only. Thus against the 100% tax liability the appellant has born 150% of Tax liability. Accordingly, the appellant is entitled either for refund of 50% for excess paid Service Tax or for adjustment against the excess paid towards the future tax liability. As result we hold that the adjustment made by the appellant of excess paid service tax towards the subsequent tax liability is absolutely in order and correct. Therefore we do not find any error in the order passed by the Adjudicating Authority. However, the impugned order passed by the learned Commissioner (Appeals) suffers from apparent error and illegality. Hence, the same is not sustainable. 5. Accordingly, we set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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