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2019 (6) TMI 904 - AT - Service TaxRefund of service tax paid - Amount deposited during pendency of investigation - applicability of unjust enrichment - Tribunal on merit of claim held that no service tax is payable - refund allowed but the said amount was directed to be credited in the Consumer Welfare Fund under Section 11B(2) of the Central Excise Act, 1944 - HELD THAT:- Any amount deposited during the pendency of adjudication or investigation is in the nature of a deposit and, therefore, cannot be towards payment of service tax or excise duty. The principles of unjust enrichment, therefore, would not apply if a refund is claimed for refund of this amount - reliance placed in the case of COMMR. OF CUS., BANGALORE VERSUS MOTOROLA INDIA PVT. LTD. [2006 (4) TMI 390 - CESTAT, BANGALORE]. In the present case, it is not in dispute that the Appellant had deposited ₹ 1 Crore when the raid was conducted on 6 October, 2003 and subsequently an amount of ₹ 11,36,840/- on 27 October, 2003. Both the amount were deposited much before the issuance of the show cause notice on 24 August, 2004. It is not in dispute that on the application filed by the Appellant for refund of this amount, the adjudicating authority did sanction the refund of ₹ 1,11,36,840/- but it directed the said amount to be deposited in the Consumer Welfare Fund because of the principles of unjust enrichment. This Order was upheld by the Commissioner(Appeals) for the same reason. This view is apparently contrary to the consistent view of the High Courts and the Tribunal. The Appellant would, therefore, be clearly entitled to the refund of ₹ 1,11,36,840/-. Amount collected but not deposited to the Government - Applicability of Sections 73A and 73B of the Act - recovery of the amount - HELD THAT:- Section 73 A of the Act which came into effect from 18 April 2006, provides a complete answer to this issue. Section 73 A deals with service tax collected from any person to be deposited with Central Government. While sub-section (1) deals with service tax collected in excess of the service tax assessed or determined, sub-section (2) deals with any person who has collected any amount which is not required to be collected from any other person, in any manner as representing service tax. Sub-section (2) in such a situation would be applicable. Such a person is required to forthwith pay the amount so collected to the credit of the Central Government. It shall, therefore, be open to the Department to proceed strictly in accordance with the provisions of Sections 73A and 73B of the Act to recover the amount alleged to have been collected by the Appellant as service tax after issuance of a show cause notice. The Appellant shall be given an adequate opportunity to substantiate its case that it had not collected ‘service tax’ but had only collected ‘service charges’. Appeal disposed off.
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