TaxTMI 
TaxTMI 
2022 (3) TMI 555
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....or to be provided to any person by an advertising agency in relation to advertisement, in any manner; 2. The appellant herein was only carrying the advertisements of the advertisers and broadcasting or telecasting them and not actually making the advertisements. While the service provided by an advertising agency was a taxable service, a question arises whether an amount paid by the advertiser only for the space in the print media or in electronic media would also be taxable. The Central Board of Excise and Customs issued a circular No. 341/43/96-TRU dated 31.10.1996 clarifying that 'the amount paid excluding the commission by the advertising agency for space and time in getting the advertisement published in the printing media or the electronic media would not be includable' in the value of taxable service for the purpose of levy of service tax. 3. Officers of the Department felt that the service rendered by Doordarshan Kendra, Trivandrum were taxable but neither has a registration certificate been obtained nor has any tax been paid nor any return filed by Doordarshan Kendra. It was felt that this amounted to contravention of the provisions of section 68 of Finance Act, 1994 and....
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....The appeal is accordingly prayed to be allowed. 7. Rebutting the submissions of the learned counsel, learned Departmental Representative submitted that there is no denial of the fact that the appellant has collected service tax from the several other people/customers but has not deposited the same with the Government. Such an admission is sufficient proof for grave error of evading deposit to have been committed by the appellant. Therefore the demand has rightly been confirmed following the decision of Modern Co-op Bank Ltd. vs CCE, Nasik reported in [2010(19) STR 697 (Tri-Chennai)]. He further submitted that recovering service tax from the service recipient and not paying the same to the department, has been held by this Tribunal to be considered as evasion of service tax with intention to evade the duty. Hence, no mistake has been committed by the Adjudicating Authority when the demand has been confirmed and penalty has been imposed and interest also has been demanded. Decision of CESTAT, Ahmadabad in the case of IWI Cryogenic Vaporization System India vs. CCE & ST Vadodara II reported as [2016 (41) STR 290 (Tri-Ahmd)] has also been relied upon. With these submissions, learned D....
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.... to deposit it with the Government. Sub-section (1) of this section requires any person who is liable to pay service tax who has collected excess amount to deposit it with the Central Government. Sub-section(2) requires any person who collected from anyone else any amount as service tax which is not required to be paid to deposit it with the Central Government. It reads as follows: SECTION 73A. Service tax collected from any person to be deposited with Central Government. - (1) Any person who is liable to pay service tax under the provisions of this Chapter or the rules made thereunder, and has collected any amount in excess of the service tax assessed or determined and paid on any taxable service under the provisions of this Chapter or the rules made thereunder from the recipient of taxable service in any manner as representing service tax, shall forthwith pay the amount so collected to the credit of the Central Government. (2) Where any person who has collected any amount, which is not required to be collected, from any other person, in any manner as representing service tax, such person shall forthwith pay the amount so collected to the credit of the Central Government. (3....
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.... already prohibited in terms of Article 265 of Constitution of India. As per the said article, no tax shall be levied or collected except by Authority of law. It means that the right to levy or collect tax has not been given to anyone except with the authority of law. The tax therefore is not a voluntary payment which one may decide on its own nor anyone can collect, it suo moto. It is a payment extracted by legislative authority under Article 265, which acts as an armour against arbitrary tax extraction. Even the Government on its own cannot levy tax by itself. 12. In the case of Lord Krishna Sugar Mills vs Union of India reported in 1959 AIR 1124 the sugar merchants had to meet some export targets in a promotion scheme started by the Government and if it fell short of the target, an additional excise duty was to be levied on the short fall. The Supreme Court held that the Government had no authority of law to collect this additional excise tax. In view of the discussion as above, even in this case, the amount collected by the appellant cannot be demanded by the Government in the absence of any legal provision. However, it is equally true that the appellant itself was not entitle....
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....ubject of restitutions which incorporates repayment or reimbursement for benefits received from. Indian Contract Act, 1972 provides various remedies for unjust enrichment under section 68 & 72 thereof. Section 72 is precisely applicable to the given circumstances. Hon'ble Justice Jeevan Reddy, author of Mafatlal Industries case (supra) has held in the said decision that section 72 is the rule of equality passing on to the burden in the course as held to be one of the equitable consideration. It is also held that it is for manufacture/ service provider to allege and point out that he has not "passed on the duty to a third party. This requirement flows not only because section 72 incorporates the rule of equality but also that the central excise duty and the customs duty/ service tax and indirect taxes which are supposed to be and are permitted to be passed on to the buyers. 16. Hon'ble Apex Court in the case of Mafatlal Industries (supra) case observed that the Central Excise duty and Customs duty Law (Amendment Act 1996) required every assesse seeking refund of illegally recovered tax to prove that he has not passed on the burden of such tax to the customers or to any other perso....
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....ment also did not exist at the relevant time. Thus, the Government had no authority to demand the amount. 18. However, it is equally true that the appellant had no authority under the Service tax law or any law for that matter, or on the principles of equity, to collect from its customers an amount representing it as service tax and retain it when no tax was payable. It is possible that the amount was collected under the mistaken belief that tax was payable. If so, the appellant should have deposited 'the tax' so collected with the Government as tax (pending the final outcome of the decision in the SCNs issued). Another possibility is that the appellant had not believed that tax is payable but had collected it from its customers by mistake. If so, it should have returned the amount to its customers. A third possibility is that the appellant knew that no tax was payable but since the SCNs were pending, as a matter of abundant precaution to save itself from a tax liability at a later stage, collected the amounts as Service tax from its customers. If so, once the decision is made that no service tax is payable, the appellant should have returned the amounts so collected as tax to its....