2015 (12) TMI 89

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.... they vide their letter dated 16.07.2010, addressed to the Dy. Commissioner, Service Tax requested to keep the excess amount of Rs. 3,45,037/-, as deposit to be adjusted later against future service tax liability. However, due to no business, subsequent service tax liability arose only in March 2012 and the department adjusted Rs. 1,87,395/-, against the service tax liability which had arisen at that point of time. Since they did not have any business further, they requested to return the balance amount of Rs. 1,57,642/- vide their letter dated 16.07.2012. A show cause notice was issued on 16.10.2012 to show cause why their claim for refund of the said amount should not be rejected. By the impugned Order-in-Original, the Dy. Commissioner, S....

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....t the amount was paid in April 2010 as service tax, though by mistake. Therefore, the provisions of Section 11B(2) will be applicable in this case and the appellant should have filed the refund claim within one year of payment of the said amount in April 2010. Hence, the refund claim is hit by limitation. 4. On consideration of the arguments of both sides and perusal of the records, it is observed that the appellant had requested the department on 16.7.2010 in writing that the excess amount paid by them in April 2010 may be kept as deposit with the department to be adjusted against any future liability of service tax. Hence, we find force in the arguments of the learned Advocate that the amount should be treated as deposit only. As only ....

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....Further, in a recent case, the Hon'ble High Court of Karnataka in the case of CCE, Bangalore vs. KVR Construction [2012 (26) STR 195 (Karnataka)], in Paras 19, 22 and 23 held as under:- "19. According to the appellant, the very fact that said amounts are paid as service tax under Finance Act, 1994 and also filing of an application in Form-R of the Central Excise Act would indicate that the applicant was intending to claim refund of the duty with reference to Section 11B, therefore, now it is not open to him to go back and say that it was not refund of duty. No doubt in the present case, Form-R was used by the applicant to claim refund. It is the very case of the petitioner that they were exempted from payment of such service tax by....

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....payable by them. When once there is lack of authority to demand service tax from the respondent company, the department lacks authority to levy and collect such amount. Therefore, it would go beyond their purview to collect such amount. When once there is lack of authority to collect such service tax by the appellant, it would not give them the authority to retain the amount paid by the petitioner, which was initially not payable by them. Therefore, mere nomenclature will not be an embargo on the right of the petitioner to demand refund of payment made by them under mistaken notion. -------------------------------------------------------------------------------------------------------- -----------------------------------....