Order Date – 30 May 2023

Parties: M/s B.L. Kashyap & Sons Ltd. Vs Commissioner of Service Tax

Facts – 

• The Appellant, M/s B.L. Kashyap & Sons Ltd., has short paid or excess paid the service tax payable by them in the months of June and July 2007. The same was adjusted in ST-3 return filed for the period August and September 2007 under Rule 6 (3) of Service Tax Rules.
• On being asked by the department the appellant explained it by giving monthly wise adjustment. Despite the explanation given by the appellant a show cause notice was issued seeking to recover the service tax alleged to have been wrongly adjusted by the appellant along with interest and penalty; Adjudicating authority has confirmed the demand.

Issue – 

• Whether the short paid or excess paid service tax can be adjusted in ST-3 return under Rule 6 (3) of Service Tax Rules?

Order – 

• The Tribunal observed that the adjudicating authority cannot counter or negate the claims and submissions of the appellants. Not even a single piece of evidence has been adduced to show that the appellants have in fact violated the provisions of Rule 6 (3) of STR, 1994. Except for making a bald averment that the appellants have violated the provisions of Rule 6 (3) of STR, 1994, no other discussion is made to show as to how the conclusions were drawn. 
• The appellant can adjust the service tax excess paid against his service tax liability for the succeeding month or quarter; sub-Rule 4A of Rule 6 of STR starts with a non-obstante clause and, therefore, the procedure prescribed for the earlier rules, if any, are not applicable in the instant case; the appellant is eligible to avail the provisions of Rule 6 (4A) of STR, 1994.
• Further the Tribunal in the case of Schwing Stetter (India) Pvt. Ltd. versus Commissioner of Central Excise, LTU, Chennai has observed that the excess amount paid in the month of May, 2011 adjusted by the appellants in the subsequent months tax liability is absolutely in order.
• Hence the appeal is allowed.