TMI Blog2015 (2) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the refund vide the impugned order on the grounds of limitation. The adjudicating authority held that the service tax was deposited on 23.8.2010, 06.9.2010 and 06.10.2010 but they filed refund claim on 25.10.2012 i.e. after a span of two years, which is beyond the limitation prescribed under Section 11B of the Central Excise Act, 1944. Against the order passed by adjudicating authority, an appeal was filed and first appellate authority allowed the appeal filed by the present Respondent by relying upon the order passed by CESTAT, Mumbai in the case of CCE Kolhapur vs. Pratibha Construction Engineers and Contractors (India) Pvt. Limited - [2014 (32) STR 182 (Tri. Mum.)]. 2.1 Learned AR argued that the service tax paid by the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CCE, Nagpur- [2014 (35) STR 77 (Tri. Mum.)] 4. Heard both sides and perused the case records. The issue involved in the present proceedings is as to whether amount of ₹ 19,11,331/- paid by the Respondent should be considered as payment of duty or an amount paid as deposit . 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 (supra) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
