2019 (5) TMI 719

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....ction 69 of the Finance Act, 1994 under the category of 'Restaurant Service' and 'Accommodation Service'. The appellant had been paying service tax for the two services for the period from May 2011 to June 2012. They stopped paying the tax from July 2012 onwards on the basis of order dated 3/7/2013 of the Hon'ble High Court of Kerala in WP(C) No.14045 of 2011 (E) wherein it was held that (i) sub clauses (zzzzv) and (zzzzw) of Clause 105 of Section 65 of the Finance Act, 1994 as amended by Finance Act, 2011 was beyond the legislative competence fo the Parliament as the sub clauses were covered by Entry 54 and Entry 62 respectively of List II of the Seventh Schedule and (ii) that if any payments had been made by the petitioners on the basis o....

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....e facts and the law. He further submitted that after the decision of the Hon'ble Kerala High Court wherein it was held that levy of service tax on both of the services is beyond the legislative competence of Parliament. The appellant filed refund and the learned adjudicating authority though sanctioned the refund but credited the amount to Consumer Welfare Fund on the ground of unjust enrichment. He further submitted that the adjudicating authority though admitted the fact that appellant had not charged service tax in the invoices raised by them to the customers but still held that on verification of financial records for the financial year 2012-13 and 2013-14, the amount claimed as refund was not reflected as assets and has been shown as e....

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....and submitted that against the decision of the Kerala High Court, the Department has already filed appeal before the Hon'ble Apex Court and the same is pending, which is reported in UOI vs. Kerala Bar Hotels Association: 2018 (16) GSTL J170 (SC). He further submitted that on merit also the appellant has shown the amount of refund as expense in the Profit and Loss Account and therefore, both the authorities have rightly come to the conclusion that the Doctrine of Unjust Enrichment is applicable as the appellant has passed on to its customers. The learned AR further relied upon the decision rendered in the case of ITC Ltd. vs. CST reported in 2019 (22) GSTL 218 (Tri.-Del.). 6. After considering the submissions of both the parties and perus....