Custom, Excise & Service Tax Tribunal
M/S. Bharat Sanchar Nigam Ltd vs Cce, Chandigarh on 19 June, 2009
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
BENCH-,,,,,DB
Appeal No.ST/493/2007
[Arising Out of Order-in-Appeal No.169-170/CE/ APPL/ CHD/2007 dated 28.05.2007 passed by the Commissioenr (Appeals), Chandigarh].
Date of Hearing :19.06.2009
Date of decision: 19.06.2009
M/s. Bharat Sanchar Nigam Ltd. Appellant
Vs.
CCE, Chandigarh Respondent
Present for the Appellant :Shri.G.C. Babbar, Advocate Present for the Respondent:Shri Vijay Kumar, SDR Coram: Honble Mr.D.N.Panda, Judicial Member Honble Mr. Rakesh Kumar, Technical Member ORDER NO. _______________ DATED:19.06.2009 PER: D.N.PANDA Ld. Counsel Shri.G.C. Babbar, submits that this appellant is a Public Sector undertaking providing telephone services. It is quite practical that bills of certain months are not realized in every month for the service provided. Service is also provided from different points but at the initial stage this appellant has to do registration under Rule 4 (1) under Service Tax Rules 1994. Subsequently, this appellant has been registered under rule 4(2) of Service Tax Rules 1994. Considering the difficulties of the appellant Deptt. in terms of letter dated 12.05.98 had allowed this appellant to operate under Provisional Assessment Scheme and submit the return in form No.ST-3 A under rule 6 of Service Tax Rules 1994. When this appellant came in Stay application before this Tribunal its grievance was placed as under:-
For the month of March, 2005, they were advised by the Department to make the excess deposits as part of revenue drive which was reflected in the statement for the month of April, 2005. The assessment in their case was provisional. Though they were required to pay service tax relating to any month either in the same month (i.e. for March) or by 5th of the next month, they were filing the return half-yearly and they have adjusted excess payment made in some months against short payments in other months. In fact, they have, in net, paid more for the half-year ending 30.9.05.
2. Considering that the assessment were provisional the Stay Application was allowed.
3. Ld. Counsel, further submits that if there is any excess payment of service tax during one month that is permitted to be adjusted against payment of tax in subsequent month. Such a provision appears under rule 6 (4A) of Service Tax Rules 1994. However, that rule came into force from 16.6.05. Ld. Counsel, therefore, prays that if the provisional assessment is finalised, what that is payable or refundable, can be ascertained. Accordingly, appropriate direction may be given to the adjudicating authority to first finalise the provisional assessment and pass a proper order. He further prays that there is nothing defaults on the part of the appellant to comply with the law. Therefore, neither interest nor penalty is leviable.
4. Ld. DR also fully agrees that there is a letter at page No.24 of the appeal folder showing provisional assessment was going on. Also he agrees that this provisional assessment aspect has been examined by the Tribunal, when the stay order was passed. There is no difficulty for the Department to conclude the assessment finally taking all provisional assessment figures take into consideration and all pleading of the appellant. But he specifically points out that when the appellant was not registered under rule 4 (2) of Service Tax Rules 1994 during the material period, the appellants shall not be entitled to the benefit under rule 6 (4A) of Service Tax Rules 1994.
5. Heard both sides and perused records. We notice from para 6 of the stay order that Tribunal has waived pre-deposit in following manner:-
6. We have carefully considered the submissions from both the sides. Admittedly, the applicant was under provisional assessment. Present case does not involve adjustment of dues of one registered unit against another registered unit of the same assessee which appears to be the purpose of registration under Rule 6(4A). At any rate, during these six months period involved, the applicant has overall paid in excess of what was due from them. Under these circumstances, we hold that the applicant has made out a case for waiver of pre-deposit of dues as per the impugned order. Accordingly, we waive the pre-deposit of dues and stay recovery of the same till disposal of the appeal.
6. We are unable to appreciate that how such a demand primarily can arise without provisional assessment being concluded by a final assessment. Both sides agree with page No.24 in the appeal folder calls for finalisation of provisional assessments. There is no difficulty to remove the bottle neck and obstacles of the procedure when the appellant is entitled to the substantial relief and that too as a public sector. The rules are not tyrants but aid to grant substantial relief required by them. What that is not required to be realised cannot be done. If the appellant- public sector is entitled to be adjustment by rule 6 (4A) even though incorporate in statute book w.e.f. 16.6.05 the language of the rule does not suggest that the same should be read in a pedantic manner while the appellant is entitled to substantial relief, therefore, it is necessary to conclude the assessment and arrive at a rational decision for appropriate application of the law. It may be stated that the appellant having proved from his conduct that its registration under rule 4(2) of Service Tax Rules 1994, aforesaid letter dated 12.5.1998 that shall not debar the Public Sector to get the benefit of Rule 6 (4A) once that is read as having retrospective application. In view of our above observation and finding we remit the matter back to the lad. Adjudicating Authority to complete the provisional assessment and granting fair opportunity of hearing to the appellant and shall pass an appropriate order in accordance with law.
7. In the result, the appeal is allowed with remand.
[Dictated & Pronounced in the open Court].
(D.N.PANDA) JUDICIAL MEMBER (RAKESH KUMAR) TECHNICAL MEMBER Anita