Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs Bsnl on 12 December, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/130/2009-DB, ST/131/2009-DB, ST/132/2009-DB, ST/133/2009-DB, ST/134/2009-DB, ST/135/2009-DB, ST/136/2009-DB, ST/137/2009-DB [Arising out of Order-in-Appeal No. 266/2008 dated 03/12/2008 passed by the Commissioner of Central Excise (Appeals), Mangalore.] Commissioner of Central Excise, Customs and Service Tax MYSORE S1-S2, VINAYA MARGA, SIDDHARTHA NAGAR, MYSORE - 570011 KARNATAKA Appellant(s) Versus BSNL BM ROAD, MADIKERI & BM ROAD, HASSAN Respondent(s)
Appearance:
Mr. Naveen Kushalappa, AR For the Appellant Mr. Cherian Punnoose, Advocate For the Respondent Date of Hearing: 12/12/2017 Date of Decision: 12/12/2017 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER HON'BLE SHRI V. PADMANABHAN, TECHNICAL MEMBER Final Order No. 23034-23041 / 2017 Per : V. PADMANABHAN These appeals are filed by the Revenue against the Order-in-Appeal No.266/2008 dated 3.12.2008. The appeals are on the same issue and hence are disposed of by this common order for the sake of convenience.
2. The details of the appeals are given below:
Sl. No. Appeal No. Period Amount 1 ST/130/2009-DB April Sep. 2005 Rs.2,70,458/-+ Interest + Penalty 2 ST/131/2009-DB Oct. 2005 to March 2006 Rs.2,51,881/-+ Interest + Penalty 3 ST/132/2009-DB April Sep. 2006 Rs.3,18,998/-+ Interest 4 ST/133/2009-DB Oct. 2006 to March 2007 Rs.1,69,421/-+ Interest 5 ST/134/2009-DB April Sep. 2002 & July 2003 Rs.3,05,002/-+ Rs.41,991/- Interest 6 ST/135/2009-DB Oct. 2006 to March 2007 Rs.98,417/-+ Interest 7 ST/136/2009-DB April Sep. 2005 Rs.2,94,931/-+ Interest 8 ST/137/2009-DB Oct. 2005 March 2006 & April Sep. 2006 Rs.8,15,357/- + Rs.11,14,888/- + Interest The impugned order covers the period under consideration as above. The facts of the case are that the respondent was registered under the category of telephone services. They had effected adjustments of service tax said to be excess paid to the credit of Central Government against their service tax liability for the subsequent period as mentioned in the table above. The department was of the view that the respondent was not eligible to make such adjustments as per the provisions of Rule 6(4A) of the Service Tax Rules, 1994. Accordingly, the adjustments of excess service tax paid resulted in the short-payment of service tax as detailed in the above table. The original authority confirmed the demand of service tax as above but when challenged in appeal, the Commissioner (A) allowed such adjustments. Aggrieved by the said order, the present appeals have been filed by Revenue.
3. With the above background, we heard Mr. Naveen Kushalappa, learned AR for the Revenue and Mr. Cherian Punnoose, learned advocate for the respondent-assessee.
4. After hearing both sides and perusal of the records, we note that the issue is no longer res integra and is decided in favour of the respondent by various decisions of the Tribunal. In the case of Jubilant Organosys Ltd. reported in 2015 (38) STR 1230 (Tri.-Del.), the adjustments of service tax was allowed in terms of Rule 6(4A) of Service Tax Rules, under similar circumstances. The Tribunal in the above case has observed as under:
3.?The appellants have contended that the issue whether the adjustment of service tax paid in excess during certain months can be adjusted towards Service Tax liability of the subsequent months has been subject matter of various judicial pronouncements settling the issue in their favour. They have referred to the following judgments in their support:
(i) CC, Patel & Associates Pvt. Ltd. v. Union of India - 2013 (32) S.T.R. 392 (Guj.)
(ii) M/s. Bank of Rajasthan Ltd. v. CCE, Jaipur - 2010-TIOL-1171-CESTAT-DEL.
(iii) Gujarat NRE Coke Ltd. v. CCE, Rajkot - 2012 (27) S.T.R. 372 (Tri-Ahmd.).
(iv) BSNL v. CCE, Chandigarh - 2011 (24) S.T.R. 719 (Tri.).
(v) Nirma Architects & Valuers v. CCE, Ghaziabad - 2006 (1) S.T.R. 305 (Tri.).
4.?The ld. DR did not object to the relevance of the case laws cited.
5.?We have considered the facts of these cases and the relevant judicial pronouncements on subject matter cited above. All these judicial pronouncements have in effect held that the adjustment of service tax paid in excess in certain months towards the service tax liability of the subsequent months cannot be denied on such technical grounds. Indeed, in a very recent CESTAT judgment (order No. 52863/2014, dated 10-7-2014) in the case of Bharat Sanchar Nigam Limited the issue has been considered and decided in favour of the assessee. Thus, the issue stands settled in favour of the appellants and is no longer res integra.
5. Since the issue stands settled in favour of the respondent, by following the above ratio of the Tribunal, we dismiss all the appeals filed by the Revenue and uphold the impugned order.
(Order dictated in Open Court on 12/12/2017) V. PADMANABHAN TECHNICAL MEMBER S.S GARG JUDICIAL MEMBER rv 4