TMI Blog2017 (2) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... has furnished documents to show that the amount collected has been adjusted. The amount was collected as service tax on the mistaken belief that the services were taxable. The amount however does not have the colour or character of tax for the purpose of levy by the department. Further, appellant has adduced evidence to show that the amount collected is adjusted - the rejection of refund claim is unjustified - appeal allowed - decided in favor of appellant. - ST/22559/2014 - A/30030/2017 - Dated:- 2-1-2017 - Ms. Sulekha Beevi, C.S., Member (Judicial) Sh. P. Dwarakanath, Consultant for the Appellant. Sh. Nagraj Naik, Deputy Commissioner (AR) for the Respondent. [Order per: Sulekha Beevi.] 1. The above appeal is filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st with effect from 01.07.2012. On realizing the mistake, M/s Uni Ads Ltd., deducted a sum of ₹ 6,59,476/- from the payment due by them towards licence fee for the month of October, 2012. That therefore the service tax collected from M/s Uni Ads Ltd., has been adjusted. A letter dated 20.06.2013 was issued to the appellant by M/s Swamy Ads requesting to adjust the service tax amount into their account. The amount pertaining to M/s Swamy Ads would be ₹ 28,052/- (Rs.6,59,476+ ₹ 28052 = ₹ 6,87,528/-.) It is contended by the appellant that the service tax has not been passed on as M/s Swamy Ads and M/s Uni Ads Ltd., have filed declaration and also adjusted the said amounts. Further, the appellant has also furnished a dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R relied upon the decision rendered in M/s Mukund Ltd., Vs CCE, Mumbai-VI [2006 (2) STR 20 (Tri-Mumbai)] , and argued that even though credit notes are issued the claim of refund would be hit by unjust enrichment as the element of tax/duty has already been passed on. 5. I have heard both sides. It is contended by appellant that the amount so collected does not have the colour or character of service tax for the reason that with effect from 01.07.2012, the said service fall in the negative list and are not taxable. The appellant having collected the tax erroneously has deposited the same to the Central Government. Thereafter they have filed the refund claim stating that there was no liability to make the payments as the services are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of law Article 226 of the Constitution of India would come to the aid of an aggrieved party and also that no State has the right to retain taxes or monies realised from citizens without authority of law. Allowing the writ petition filed by the petitioner the Hon'ble High Court has observed in para 19 as under: A considered appraisal of the ratio of the aforesaid judgments, leaves no ambiguity that the factual situation so permitting, particularly where the levy and collection of tax is without authority of law, Article 226 of the Constitution of India would come to the aid of an aggrieved party, even where the assessment order has not been challenged by appeal or revision, to undo a collection of tax made without authority of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced as under: This is to certify that we have recovered the Service Tax paid for the period from 01.07.2012 to 31.08.2012 which amounts to ₹ 6,59,476/- (Rupees Six Lakhs fifty nine thousand and four hundred Seventy Six Only) from the License Fee paid to APSRTC for the month of October 2012. The declaration given by appellant is as under: M/s Uni Ads has paid the Service Tax amount of ₹ 6,59,476/- in addition to the License fee for the months of Jul' 2012 and Aug' 2012 even though Advertisement Contracts are in Negative List w.e.f. 01.07.2012 APSRTC has remitted the Service Tax amount to the Service Tax Department vide Challan No. 17 dated 5 th Sep 2012. This is to declare that M/s Uni Ads has short r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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