Customs, Excise and Gold Tribunal - Mumbai
Mtnl vs Commissioner Of Service Tax on 13 December, 2007
Equivalent citations: [2008]12STJ417(CESTAT-MUMBAI), 2008[10]S.T.R.143
ORDER A.K. Srivastava, Member (T)
1. The stay application has been filed by the applicants against the Order-in-Original No 11/STC/S.J. Singh/07 dated 04.01.07 passed by the Commissioner of Service Tax, Mumbai, who vide the impugned order, ordered the applicants to pay Rs 55,98,941/- alongwith interest @ 13%.
2. Heard both the sides and perused the records.
Prima facie, the action of the applicants in the instant case, to suo motto adjust the excess Service Tax recovered from the subscribers in subsequent half yearly return appears to be incorrect in as much as Rule 6(3) of the Service Tax Rules, 1994 permits such adjustment only if the assessee has refunded the value of the taxable service and the Service Tax thereon to the person from whom it was received. In the instant case, the refund of the excess Service Tax alone by the applicants to the subscribers in the subsequent billings is not sufficient. This finds support from the decision of the Tribunal in the case of A.C. Nielsen Org Marg (P) Ltd. v. Commissioner of Central Excise, Delhi 2006 (3) S.T.R. 503 (Tri.-Del), wherein it has been held that the adjustment of the excess Service Tax paid towards discharge of liability of another half year is admissible only if the value of the taxable service along with Service Tax thereon is returned, as provided in Rule 6(3) ibid. The applicants have not been able to produce any evidence in support of their claim that they have refunded the value of the taxable service also to the subscribers. The applicants have not prima facie made out a case for the complete waiver of the pre deposit of the amount demanded. Keeping in view the facts and circumstances of the case, we order the applicants to deposit Rs 15.00 lakhs (Rupees Fifteen lakhs only) towards Service Tax within eight weeks from today and report compliance by 18.2.2008. On such a deposit, pre deposit of the balance amount shall stand waived and recovery thereof stayed pending disposal of the appeal. Failure to comply with the above directions shall result in the dismissal of the appeal without prior notice.
3. However, our observations in paragraph 3 above, do not preclude the applicants from submitting before the Commissioner for consideration any evidence, they may rely upon, in support of their claim that the value of the taxable services have also been returned to the subscribers by them, in relation to the cases, which have been remanded by this Tribunal to the Commissioner.
(Dictated in Court)