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2021 (8) TMI 1104 - AT - Service TaxRefund of excess amount of service tax paid - rejection on the ground of time limitation - relevant date - refund was proposed to be rejected as it has not been filed within one year - HELD THAT:- There is no denial of the fact that appellant had made payment for his service tax liability for the quarter ending April, 2017 to June, 2017 in April itself.Certain amount i.e. ₹ 2,85.501/- was paid to be adjusted towards his total liability to be incurred during this quarter. There is also no denial that the entire liability of the appellant for this quarter was for ₹ 1,41,714/- which stand adjusted by the Department as the Service Tax being paid by the appellant for the period of April, 2017 to June, 2017 but out of the payment made from 11.4.2017 to 24.4.2017. Admittedly, ₹ 1,51,404/- remained the balance to be adjusted for the service tax liability of appellant as may occur after quarter ending on 30.06.2017. These admitted facts are sufficient to hold that the amount in question was not at all tax liability of the appellant. Since post July 01, 2017, the applicability of this Rule was no more available to the appellant, the excess amount already got deposited by the appellant at the time when Service Tax liability for the said quarter had not even accrued towards the appellant, but remain unutilised for any tax liability till 30.06.2017, the amount cannot qualify for being called tax. The said balance was appellant’s own money and Department cannot be allowed to get unjustly enriched out of said money - the learned Commissioner (Appeals) has erred while invoking bar of limitation of one year as mentioned under section 11 B for the amount which was not duty or tax. Learned Commissioner (Appeals) is also held to have erred while invoking the clause (f) of the definition of ‘relevant date’ as given under section 11B. Since the amount in question was not duty, date of payment of duty clause cannot apply and date of impugned deposit cannot be taken as relevant date - appeal allowed - decided in favor of appellant.
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