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2012 (10) TMI 835 - GUJARAT HIGH COURTLimitation u/s 11B - rejection of refund claim of demand of service tax paid - demand raised on ground of short duty paid without adjusting excess duty paid in other quarters - Held that:- It is observed that petitioner deposited the duty on billing basis without actual collection, but within the time limit provided for depositing the duty on actual collection. In such case, u/s 68(3), the time available to a service provider such as the petitioner for depositing with the Government service tax though not collected from the service recipient was 75 days from the end of the month when such service was provided. Section 68(3) never provided that the same cannot be paid by the 15th of the month following the end of the month when such service was provided. Thus, if the petitioner deposited such duty with the Government during a particular quarter on the basis of billing without actual collection, he had discharged his liability under sub-section (3) of section 68. Thereafter, on an artificial basis, the Assessing Officer could not have held that he ought to have deposited same amount once all over again in the following quarter. This is fundamentally flawed logic on the part of the Assessing Officer. Further, to accept such formula adopted by the Assessing Officer would amount to collecting the tax from the petitioner twice. Before raising demand under the head of duty short paid, the Assessing Officer should have granted adjustment of the duty already paid by the petitioner towards the same liability.Under the circumstances, question of applying limitation under section 11B of the Act would not arise since we hold that retention of such service tax would be without any authority of law. Issuance of unjust enrichment - held that:- A question of unjust enrichment is wholly irrelevant. It is not refund of a duty which is found upon completion of assessment excess paid that the petitioner is asking for. It is a duty which the petitioner has already paid separately and second time under insistence of the department which he is asking for being refunded. Under the circumstances, the question of unjust enrichment cannot be applied. - Decided in favor of assessee
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