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TMI Blog2024 (12) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... ties and adjusted the service tax already paid by them. Support drawn from a recent decision of coordinate bench of this Tribunal at Allahabad in case of VC Solutions Pvt. Ltd. [ 2024 (4) TMI 112 - CESTAT ALLAHABAD] wherein it is observed as ' From perusal of the above Rule, it is evident that such adjustment is provided in respect of services which were either not provided or partially provided for any reason. The phrase partially provided for any reason would include the short payments made by the recipient or adjustments made by the recipients while making payments to the service provider against any deficiency in the services provided.' Thus, the demand of Service tax of Rs.38,74,883/- is not sustainable in the present case. Exemption from payment of service tax for the services provided to Consulate of Belgium - Time limitation - HELD THAT:- The entire issue in the present case has come up through the audit of the assessee by the revenue authorities. The Appellant has also broadly contested the demand on limitation - the Appellant has established a strong case on limitation. The Appellant claimed the exemption from payment of service tax itself is an indication that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6(3) of Service Tax Rules, 1994 is extracted below: (3) Where an assessee has issued an invoice, or received any payment, against a service to be provided which is not so provided by him either wholly or partially for any reason or where the amount of invoice is renegotiated due to deficient provision of service, or any terms contained in a contract, the assessee may take the credit of such excess service tax paid by him, if the assessee, (a) has refunded the payment or part thereof, so received for the service provided to the person from whom it was received; or (b) has issued a credit note for the value of the service not so provided to the person to whom such an invoice had been issued. 6. Perusal of above statutory provision would reveal that it is very wide in nature where the adjustment of service tax is permissible subject to certain conditions. It is undisputed fact in the present case that the Appellant has issued the credit notes to those government entities which refused the payment of consideration and service tax to the Appellants. Therefore, in our view the Appellant has rightly issued the credit notes to those government entities and adjusted the service tax already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied by any evidence which has been part of record. On the contrary, it is submission of the appellant that the figures stated in the balance sheet for the year 2009-10 wherein the total value of services provided is shown as Rs.24,55,90,004/- instead of Rs.27,63,86,166/- as claimed in the ST-3 returns. After this difference in the true values is on account of the amount refunded by way of issuance of credit note as this amount of Rs.3,24,07,774/- inclusive of service tax of Rs.10,65,330/- was refunded back to their service recipients, the same was excess payment and could have been adjusted as per Rule 6(3) in subsequent returns. 4.6 The view expressed by us is in line with the decisions as follows: A. In the case of Central Mine Planning And Design Institute Ltd. [2014 (36) S.T.R. 328 (Tri. - Del.)], Delhi Bench has held as follows: 5. After hearing both sides, we find that appellant s contention is that this case is covered under Rule 6(3) of the Service Tax Rules whereas Revenue s contention is that Rule 6(3) is not applicable. Rule 6(3) as it existed at the relevant time reads as under : 6(3)...... On going through this sub-rule, we find the excess amount of service tax paid b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed for future payments, the provisions of Rule 6(3) ibid shall become otiose and non-implementable. As the fact that excess payment is not in dispute and same has been adjusted for the future liability of Service Tax by the appellant, therefore, to pay Service Tax is only an exercise which created hurdle in the smooth functioning of imposition and collection, as held by the Tribunal. Therefore, the adjustment can be allowed. 9. In these circumstances, I allow the adjustment of excess Service Tax paid by the appellant during the period 2001 to 2002 for the Service Tax liability to October, 2002 to March, 2003. In the light of these observations, the matter is remanded back to the Adjudicating Authority to make the adjustment of the demand for the period October, 2002 to March, 2003 with the excess payments for the period 2001-02 and pass appropriate order of assessment in accordance with law. C. Mumbai bench in case of Mumbai International Airport Pvt. Ltd [2014 (33) S.T.R. 308 (Tri. - Mumbai)] held as follows: 5.1 The short issue involved herein is whether the appellant could have adjusted the excess Service Tax demand of Rs. 4,17,73,025/- which has been paid under protest. As per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... airlines. 3. The dispute in the present case arose on account of the fact noticed by the Revenue that the assessee had taken suomotu refund of service tax of Rs. 3,17,661/- on account of service tax already paid in respect of the tickets which were cancelled. 4. In appeal, the Commissioner (Appeals) upheld the order passed by the Assessing Officer. However, the Tribunal accepted the appeal filed by the assessee. The contention raised by the assessee before the Tribunal was based on circular dated 26-6-1997 of the Central Board of Excise and Customs (for short, the Board ) and also an order passed in the case of the assessee in Jaipur jurisdiction whereby the claim of refund/adjustment of the service tax on the cancelled tickets was accepted by the department. It was noticed in the circular that cancellation or modification of tickets is a common phenomenon and frequent feature in air travel. Details of cancelled or modified tickets are provided by a travel agent in the fortnightly returns filed and adjustment of the commission is made subject to final approval of the airlines. The commission is ultimately paid by the airlines on the net commission received by a travel agent. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch are on the basis of various presumptions as indicated in the impugned order. As we do not find any merits in the order in respect of the merits of the issue, we are not discussing the issue of limitation and penalty. 8. On the basis of above, we find that the demand of Service tax of Rs.38,74,883/- is not sustainable in the present case and we set aside the same. 9. For the second issue of exemption from payment of service tax of Rs.1,60,680/- for the services provided to Consulate of Belgium, we find that the entire issue in the present case has come up through the audit of the assessee by the revenue authorities. The Appellant has also broadly contested the demand on limitation. 10. We find that the Appellant has established a strong case on limitation. The Appellant claimed the exemption from payment of service tax itself is an indication that there was no suppression on the part of the Appellant. 11. We find that a detailed analysis was done by Principal Bench at New Delhi of this tribunal in case of G.D. Goenka Pvt. Ltd . reported in 2023 (8) TMI 995 CESTAT wherein it is observed as under: 11. We have examined these grounds for invoking extended period of limitation. 12. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e might have done and not that he must have done, does not render it suppression. 14. In this appeal, the case of the Revenue is that the appellant had wilfully and deliberately suppressed the fact that it had availed ineligible CENVAT credit on input services. The position of the appellant was at the time of self-assessment and, during the adjudication proceedings and is before us that it is entitled to the CENVAT credit. Thus, we find that it is a case of difference of opinion between the appellant and the Revenue. The appellant held a different view about the eligibility of CENVAT credit than the Revenue. Naturally, the appellant self-assessed duty and paid service tax as per its view. Such a self-assessment, cannot, by any stretch of imagination, be termed deliberate and wilful suppression of facts. 15. Another reason given in the SCN for invoking extended period of limitation was that the appellant had deposited the disputed amount of service tax during audit but later disputed it which shows the appellant's intent to wilfully and deliberately suppress the facts. This reasoning of the Revenue cannot be accepted because there is nothing in the law which requires the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the assessing officers may require to scrutinise them, the appellant cannot be faulted because as an assessee, the appellant neither makes the Rules nor designs the format of the Returns. So long as the assessee files the returns in the formats honestly as per its self assessment, its obligation is discharged. 18. Another ground for invoking extended period of limitation is that the appellant had not sought any clarification from the department. We find that there is neither any provision in the law nor any obligation on the assessee to seek any clarification. It was held by the High Court of Delhi in paragraph 32 of Mahanagar Telephone Nigam Ltd. v. Union of India Ors. 2023-TIOL-407-DELHI HIGH COURT as follows: 32. As noted above, the impugned show cause notice discloses that the respondents had faulted MTNL for not approaching the service tax authorities for clarification. The respondents have surmised that this would have been the normal course for any person acting with common prudence. However, it is apparent from the statements of various employees of MTNL that MTNL did not believe that the amount of compensation was chargeable to service tax and therefore, there was no req ..... X X X X Extracts X X X X X X X X Extracts X X X X
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