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TMI Blog2017 (2) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... or the period July 2012 to August 2012, the appellant collected Rs. 6,87,528/- from M/s Uni Ads and M/s Swamy Ads as service tax for the service of sale of space or time for advertisement, and paid the amount to the Government. It later came to their knowledge that the said services have been included in the negative list with effect from 01.07.2012, and therefore are not taxable with effect from 01.07.2012. The appellants then filed a refund claim for Rs. 6,87,528/-. The Original authority as well as the Commissioner (Appeals) rejected the refund claim for the reason that the service tax was collected from M/s Uni Ads and M/s Swamy Ads and therefore the refund is hit by unjust enrichment. Hence the appellant is now before the Tribunal. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llular Ltd. Vs Union of India [2016 (42) STR 823 (Punjab & Haryana)] was relied by the appellant to submit that the assessee is eligible for refund of the tax collected without authority of law. The Ld. Consultant relied upon the judgments in GB Engineers Vs Union of India [2016 (43) STR 345 (Jarkhand)] to canvass the proposition that service tax paid by assessee when the said services are not taxable, is to be refunded and that for refund of such erroneous levy the limitation prescribed under section 11B is not applicable. He argued that the same ratio would be applicable to the doctrine of unjust enrichment, also contained in Section 11B. 4. Countering the above arguments, the Ld. AR Sh Nagraj Naik reiterated the findings in the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Tax nor under the service tax when there is no liability to make the payment of the amount and under the mistake of facts or under mistake of law or under both if any amount is deposited by the assessee, the same cannot be retained by the Union of India under the one or other pretext when a service provider is not liable to make payment of the service tax and if any payment is made, it cannot be covered under Section 11B of the Central Excise Act to be read with Section 83 of the Finance Act, 1994. 6. In the above decision the Hon'ble High Court has held that the amount deposited under mistake of fact or mistake of law is not covered under Section 11B of the Central Excise Act read with Section 83 of Finance Act, 1994, for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la in the case of Geojit BNP Paribas Financial Services Ltd., Vs CCE, Cus & ST, Kochi [2015 (39) STR 706 (Ker)] held that when service tax is paid on account of mistake of fact, there being no validity or legal authority for collection of such amount, provisions of Section 11B of Central Excise Act, 1944 is not attracted and that refund cannot be rejected on the ground of limitation. It is not disputed that there is no liability cast upon the appellant to pay service tax during the relevant period. 9. The Ld. Consultant appearing for appellant submits that the incidence of service tax has not been passed on for the reason that the same has been adjusted by M/s Uni Ads to the payment made by them later towards licence fee in the month of Oc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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