Section - 073A - Service Tax Collected from any person to be deposited with Central Government

No. In the case of Sun-N-Step Club [2013 (1) TMI 576 - CESTAT AHMEDABAD] it was held that the respondent has paid an amount as Service Tax liability on the income received from the non-members, working backwards the Service Tax liability. I find that the adjudicating authority, as correctly pointed out by the ld. Counsel, has recorded a factual finding that the respondent has not charged Service Tax on any of the amount which has been charged by him to the non-members. Following the judgement of VS Infrastructure Capital Ltd. [2011 (7) TMI 886 - CESTAT, DELHI] , this case is in in favour of the assessee. As regards the provisions of Section 73A of Finance Act, 1994, I find that when there is no invoice raised or issued for collection of an amount as Service Tax, the question of depositing the same with the Government does not arise.

As no incidence of service tax liability has been passed on members, unjust enrichment provision will not be applicable on such cases. Assessee is liable for full refund.

Service tax deposit obligations do not arise where tax was not invoiced or collected, limiting unjust enrichment claims. Where no invoice was raised and no amount was specifically collected as service tax from recipients, the statutory duty to deposit such tax does not arise because there is no collected tax to be held on behalf of the Government, and absence of pass through means the legal condition for invoking unjust enrichment is not satisfied.