TMI Blog2023 (6) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... saddled with any such liability and in that case the amount deposited by the assessee with the exchequer will be considered as deposit only and keeping 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. It is not the case of the department that the appellant is raising a fake claim. The only ground of rejection is section 11B ibid. When no service has been provided, as the booking has been cancelled, then how the tax on it can be retained by the exchequer and in what capacity? This amount has been paid by the customers and when they have cancelled the booking they want to get refund of their entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal No. 88084 of 2019 with Service Tax Appeal No. 88085 of 2019 - A/85923-85924/2023 - Dated:- 6-6-2023 - MR. AJAY SHARMA, MEMBER (JUDICIAL) Shri Viraj Reshamwala, Advocate for the appellant Shri S.B. P. Sinha, (AR) for the respondent ORDER These appeals have been filed assailing the impugned order 22.08.2019 passed by the Commissioner (Appeals), Central Tax, Pune II rejecting the appeal filed by the appellant. 2. The issue herein is about the refund of Service Tax amount on the advance amount returned/ refunded to the buyer, upon the cancellation of the flats booked by the said buyer? 3. The facts of the matter in brief are as follows. The appellant is engaged in providing Construction of Residential Complex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord. The first principle of service tax is that tax is to be paid only on the services which are taxable under the said statute and for that purpose there has to have some service . Unless service is there no service tax can be imposed. 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 liability and in that case the amount deposited by the assessee with the exchequer will be considered as deposit only and keeping the said amount by the department is violative of Article 265 of the Constitution of India which specifically provides that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to pay service tax as no service has been provided and the amount paid by them would not take the character of tax. The provisions of Section 11B ibid would, therefore, not be applicable to such applications and the question of applying the limitation prescribed u/s.11B ibid would not arise. A similar view has already been taken by this Tribunal in the matter of Service Tax Appeal No. 85076 of 2021, Final Order No. A/86159/2022 dated 8.12.2022, the relevant paragraphs of which are reproduced hereunder:- 7. In view of series of decisions it is clear that the appellant cannot be said to be liable to pay service tax in any manner whatsoever inasmuch as what was paid by the appellant was not tax as envisaged under the Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in 2018 (359) E.L.T. 113 (Bom.). by holding that limitation prescribed under Section 11B of Central Excise Act, 1944 not applicable to refund claims for Service Tax paid under mistake of law. The relevant paragraphs of the said decision are reproduced as under:- 5. We are of the view that the issue as to whether limitation prescribed under Section 11B of the said Act applies to a refund claimed in respect of service tax paid under a mistake of law is no longer res integra. The two decisions of the Division Bench of this Court in Hindustan Cocoa (supra) and Commissioner of Central Excise, Nagpur v. M/s. SGR Infratech Ltd. (supra) are squarely applicable to the facts of the present case. 6. Both decisions have held the limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount would go against the mandate of Article 265 of the Constitution of India, which provides that no tax shall be levied or collected except by authority of law. 13. On an analysis of the precedents cited above, we are of the opinion, that when service tax is paid by mistake a claim for refund cannot be barred by limitation, merely because the period of limitation under Section 11B had expired. Such a position would be contrary to the law laid down by the Hon ble Apex Court, and therefore we have no hesitation in holding that the claim of the Assessee for a sum of Rs. 4,39,683/- cannot be barred by limitation, and ought to be refunded. 14. There is no doubt in our minds, that if the Revenue is allowed to keep the excess servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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