TMI Blog2014 (3) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... that the amount collected by the appellant was kept in escrow account and he has given an assurance to the buyer that if the amount is not liable to be paid, the same shall be paid with interest. It is only a deposit which is not taken into account of the appellant and kept in a separate account to ensure safety of money and to ensure disbursement to the ultimate customer. Needless to say that if the liability exists and if it is held that the appellant is liable to pay, the amount will have to be paid to the Government since it is in escrow account. Therefore Commissioner should have determined the liability and if there was liability, the amount in escrow account would have been paid to the Government. Therefore, at this stage, we cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... works contract ; and the amounts collected were kept in a separate escrow account. Taking a view that the collection of amount and deposit in bank account amount to collection of service tax and this amount should have been paid to the Government as per the provisions of Section 73A of the Finance Act, 1994, proceedings were initiated. In the impugned order, the amount of service tax of Rs. 2, 44, 17,471/-, collected from the apartment owners and kept in the escrow account, has been demanded with interest. Penalty of Rs. 5000/- under the provisions of Section 77 of the Finance Act, 1994 has been imposed. 2. The only issue to be considered in this case is whether service tax collected from the customers and kept in the escrow account and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wise, to be returned to the party has not been considered by the Commissioner in the impugned order. The issue whether the appellant is liable to pay service tax or not has also not been considered. In the absence of determination of liability of service tax, the only question remains to be answered is whether provisions of Section 73A is attracted or not. Section 73A is reproduced as under: SECTION [73A. Service tax collected from any person to be deposited with Central Government. - (1) Any person who is liable to pay service tax under the provisions of this Chapter or the rules made there under, and has collected any amount in excess of the service tax assessed or determined and paid on any taxable service under the provisions of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in sub-section (1). (6) Where any surplus amount is left after the adjustment under sub-section (5), such amount shall either be credited to the Consumer Welfare Fund referred to in section 12C of the Central Excise Act, 1944 (1 of 1944) or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of section 11B of the said Act and such person may make an application under that section in such cases within six months from the date of the public notice to be issued by the Central Excise Officer for the refund of such surplus amount. Clause (2) of Section 73A is relevant. It can be seen that if a person has collected any amount as service tax, that amount has to be paid to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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