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2015 (2) TMI 144 - AT - Service TaxDenial of refund claim - period of limitation - whether amount paid by the Respondent should be considered as payment of ‘duty’ or an amount paid as ‘deposit’ - Held that:- From the facts available on records service tax was paid on the amount of advances received by the Respondent but ultimately no service could be provided as the said works contract got terminated. In the case of Addition Advertising vs. UOI (1997 (7) TMI 2 - HIGH COURT OF GUJARAT (AHMEDABAD)) jurisdictional Gujarat High Court has, inter-alia, held that if no service is provided then there is no service tax. It means that once service is not rendered then no service tax is payable. Similarly Karnataka High Court in the case of CCE, Bangalore vs. Motorola Private Limited (2006 (7) TMI 223 - HIGH COURT OF KARNATAKA AT BANGALORE) held that any duty paid by mistake cannot be termed as ‘duty’. Similar view has been taken in the other case laws relied upon by the Respondent. In view of the above, it has to be held that the amounts paid by the Respondent cannot be termed as payment of duty but has to be considered as a ‘deposit’ to which provisions of Section 11B of the Central Excise Act, 1944 will not be applicable. Accordingly, there is no reason to interfere with the order dated 23.7.2013 passed by the first appellate authority. - Decided against Revenue.
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