TMI Blog2023 (1) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate order, the pre-condition is service . If any service has been provided which is taxable as specified in the Finance Act, 1994 as amended from time to time then certainly the assessee is liable to pay, but when no such service has been provided then the assessee cannot be saddled with any such tax and in that case the amount deposited by the assessee with the exchequer will be considered as merely a deposit and keeping of the said amount by the department is violative of Article 265 of the Constitution of India which specifically provides that No tax shall be levied or collected except by authority of law. Since Service Tax, in issue, received by the concerned authority is not backed by any authority of law, the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is entitled for refund and the appeal is accordingly allowed. - Service Tax Appeal No. 85780 of 2020 - A/85004/ 2023 - Dated:- 5-1-2023 - MR. AJAY SHARMA, MEMBER (JUDICIAL) Shri Anand Desai, Chartered Accountant for the appellant Shri S B P Sinha, Superintendent (AR) for the respondent ORDER This appeal has been filed assailing the order dated 28.2.2020 passed by the Commissioner (Appeals-III), GST CX, Mumbai by which the learned Commissioner rejected the appeal filed by the appellant. 2. The issue involved herein is about the refund of Service Tax amount which the builder has returned/refunded to the buyer alongwith the advance amount paid, upon the cancellation of the two flats booked by the said buyer? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no mechanism available to claim such credits [as specified in Rule 6(3)ibid] in GST returns and therefore the only remedy available with them is to claim refund of such service tax paid in excess. He also submits that in the absence of any service the Appellant cannot be burdened with any Service Tax. Per contra learned Authorised Representative appearing for Revenue reiterated the findings recorded in the impugned order and prayed for dismissal of Appeal. 5. The first principle of service tax is that tax is to be paid on those services only which are taxable under the said statute. But for that purpose there has to have some service . Unless service is there no service tax can be imposed. For the applicability of the provisions as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no service at all. If there is no service then question of paying any tax on it does not arise and the department can t keep it with them. No law authorises the department to keep it as tax. The net effect is that now the amount, which earlier has been deposited as tax, is merely a deposit with the department and the department has to return it to the concerned person i.e. the assessee. In the fact of this case it can be safely concluded that no service has been provided by the Appellant as the service contract got terminated and the consideration for service has been returned. 6. As per Rule 66E(b), Service Tax Rules, 1994 in construction service, service tax is required to be paid on amount received from buyers towards booki ..... X X X X Extracts X X X X X X X X Extracts X X X X
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