TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 1561
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....lant is developing a project named as 'Wave City Centre' in which dynamic product, Mix of premium and ultra luxury serviced residences, multi-use Studio Apartments, Premium Offices, High Street Shop, Condominiums, Mall and Multiplex is to be constructed. 3. The appellant raised demand notes to customers/clients for booking of property during the month of April 2011 to June 2017. The assessee charged service tax on the demand notes and collected the said amount and also deposited the same with the government exchequer. During September 2017 to November 2017, various customers/clients cancelled their bookings and the entire sum collected on account of booking was refunded inclusive of service tax of Rs.33,79,762/- by issuing credit notes to the customers. 4. The appellant filed refund claim of Rs.33,79,262/- on August 19, 2019 for the refund made during the period September 2017 to November 2017 to the customers on account of cancellation of the bookings. As the appellant failed to submit the required documents, show cause notice dated 13.05.2020 was issued as to why the refund claim should not be rejected. The adjudicating authority rejected the refund claim on the ground of l....
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....d. Vs. Commissioner of CGST & Central Excise, Mumbai East dated 05.01.2023-2023 (1) TMI 252 -CESTAT Mumbai 8. The second submission of the learned Counsel is that the time limit of one year as given under Section 11B is applicable only in respect of refund of duty, tax and interest and not in the case of amount deposited. According to him, the appellant had not rendered any services to the customers, as the booking of the flats were cancelled and they had refunded the entire amount including the service tax. Reliance was placed on the decision in M/s. Credence Property Developers Pvt.Ltd. versus Commissioner of CGST & Central Excise, Mumbai East-2023(1)TMI 252 - CESTAT MUMBAI. 9. The learned Authorised Representative for the Revenue reiterated the findings of the Authorities below and in addition thereto has challenged the maintainability of the refund application in view of the decision of the Apex Court in ITC Limited Vs. CCE, Kolkata-2019 (368) ELT 216 (SC)., read with the decision of the Delhi High Court in BT (India) Pvt. Ltd Vs. Union of India-W.P. (C ) 13968/2021 dated 6.11.2023/2023 13 CENTAX 89 (Delhi) and subsequently followed by the Tribunal on the principle that r....
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....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 has no authority to retain the same Buyer booked the flat with the appellant and paid some consideration. The appellant as a law abiding citizen entered the same in their books of accounts and paid the applicable service tax on it after collecting it from the huyer. But when the buyer cancelled the said booking on which service tax has been paid and the appellant returned the booking amount along with service tax collected then where is the question of provi....
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....ncelled and the amount has been refunded, there is no scope for rendering any service on which the Department can hold the amount towards service tax. The appellant had issued credit notes in respect of service which is not rendered to the customers on account of cancellation of the agreement and hence there was no scope of rendering any services on which the service tax could be levied. 13. The learned Counsel for the appellant has relied on the provisions of Rule 6 of Service Tax Rules, 1994, which entitles the assessee to take the credit of such excess service tax paid by him. Rule 6 during the period 01.04.2011 to 30.06.2017 is quoted below:- "(3) Where an assessee has issued an invoice, or received any payment, against a service to be provided, which is not so provided by him either wholly or partially for any reason, or where the amount of invoice is renegotiated due to deficient provision of service, or any terms contained in a contract, the assessee may take the credit of such excess service tax paid by him, if the assessee.- (a) has refunded the payment or part thereof, so received for the service provided to the person from whom it was received; or ....