TMI Blog2021 (11) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (in short Reliance ). Aggrieved, the appellant and Mr. Salim Khan jointly filed a suit being Suit No. 424 of 2013 titled as Salim Khan Anr. Vs. Sumeet Prakash Mehta Ors. before the Hon ble High Court of Judicature at Bombay against Reliance Big Entertainment Pvt. Ltd. for infringement of copyright, claiming damages to the tune of ₹ 6 crores. In the said Suit out of Court settlement was made and a payment of ₹ 2 crores each was made by Reliance to the Appellant as well as to Mr. Salim Khan in the year 2013 itself. 4. After getting information about the receipt of ₹ 2 crores each by the appellant as well as Mr. Salim Khan, the department initiated enquiry against both the recipient i.e. appellant and Mr. Khan co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals) vide Order-in-Appeal dated 19.6.2017 allowed the appeal and held that the amount of ₹ 2 crores received by the claimant can be considered as an ex gratia and not a payment for a consideration relating to any service. No Appeal was preferred by department and it attained finality. Mr. Khan thereafter filed refund application and the Deputy Commissioner (Refund), CGST CX Mumbai (West) vide order dated 30.10.2017 sanctioned refund claim of ₹ 27,44,905/- filed by Mr. Salim Khan u/s. 11B of the Central Excise Act, 1944 as made applicable to Service Tax matters u/s. 83, Finance Act, 1994. 6. Later on the appellant herein also filed the refund claim of ₹ 23,28,100/- on 15.3.2018 on the ground that he had paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before filing the refund claim. He also distinguishes the case of Mr. Salim Khan on the ground that in his case due process of adjudication under the law was followed. 8. According to learned counsel refund of amount deposited by Mr.Salim Khan (co-writer) was granted by the department considering it ex gratia whereas the same has been denied to the appellant despite knowing that it is part and parcel of the same transaction. He further submits that the appellant and Mr.Salim Khan jointly received ₹ 4 crores from Reliance as out of Court settlement in a suit filed by them jointly for copyright infringement before the Hon ble High Court of Judicature at Bombay. Out of which they took ₹ 2 crores each. The department considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. I am afraid I do not endorse the aforesaid view of the learned Commissioner. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. In the decisions cited by learned Authorised Representative the issue was about the refund of duty whereas in the instant matter there is no issue about the refund of duty but it s all about refund of deposit which was deposited under protest by the appellant. In my view, refund provisions should be interpreted in a reasonable and practical manner and when warranted, liberally in favour of the assessee. 10. In view of the discussions made in the preceding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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