TMI Blog2011 (6) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... y them only and was not passed on, it is difficult to find fault with the conclusion of the Commissioner at this stage. The two decisions relied upon by the ld. Consultant are not applicable to the facts of this case. Thus appellant has not made out a prima-facie case in their favour thus directed to deposit an amount of ₹ 1 lakh within eight weeks and report compliance - Decided against the assessee. - ST/910/11 - 530/A/2011 - Dated:- 15-6-2011 - B S V Murthy, J. For Appellant: Mr. R Kiran Gaikwad, Consultant For Respondent: Mr. Ravi Chander, JDR Per: B S V Murthy: The appellant is engaged in rendering Interior Decorator service, Business Auxiliary Service (BAS) and Construction of Industrial and Commercial Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 357 (Tri. Del. )] wherein the Tribunal had taken a view that if any amounts are collected erroneously as representing service tax which was leviable, there is no bar on the return of such amount. He submitted that since the invoice did not show the service tax separately and the service tax was not at all leviable and in view of the decisions cited by him, the requirement of pre-deposit may be waived and stay granted. 3. Ld. DR submitted that the question of taxability was not at all the issue before the Commissioner and this has been treated so by the ld. Commissioner in his order. The refund sanctioned has been demanded on the ground that the assessee failed to produce conclusive evidence to the effect that service charges collecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon by the ld. Consultant are not applicable to the facts of this case. In the case of MCI Leasing (P) Ltd. (supra), a part of the refund sanctioned was proposed to be demanded on the ground of limitation. In that case, the appellants had cited a large number of decisions wherein it was held that when the Department collects any levy which is not authorized by law to collect the same. In this case, it was not that the Department collected something which was not authorized by law. In any case, Section 73A of Finance Act, 1994 which was introduced on 18/4/2006 provides that any amount collected as service tax should be deposited to the Government. I have considered this issue and taken a view that the only conclusion possible under the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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