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2021 (11) TMI 281 - AT - Service TaxRefund of service tax paid under protest - assessment proceedings were not challenged - service tax was not payable by authorities concerned in an appeal of another assessee of the very same transaction - HELD THAT:- Learned commissioner has recorded a specific finding that the payment made by the appellant was not voluntary and is under protest and also that the application for refund is not barred by limitation. The aforesaid findings of the learned commissioner have not been challenged by the department and therefore it attained finality. As per the impugned order of learned Commissioner, tax has been collected in accordance with law i.e. under the enactment itself and no amount is refundable unless a refund can be claimed in terms of the stature/enactment. It is settled position that if the payment made by the assessee is not for any services rendered by him, the amount collected by Revenue as service tax is without authority of law and cannot be termed as tax even and can’t be retained by them. Where there is no levy of service tax, amount wrongly paid cannot partake the character of ‘service tax’. The authority concerned is duty bound to refund such amount as retention of such amount would be hit by Article 265 of the Constitution of India which bears the heading “Taxes not to be imposed save by authority of law” and lays down that no tax shall be levied or collected except by authority of law. So the act of the authorities by keeping the deposit is directly in conflict with Article 265. When the amount deposited by the appellant is not a tax and merely a deposit, there is no question of applying the provisions of the Finance Act for its refund. The refund provisions should be interpreted in a reasonable and practical manner and when warranted, liberally in favour of the assessee - appeal allowed.
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