2007 (10) TMI 40 - AT - Service Tax

Refund cannot be sought for the amount paid as tax Appellant duly registered themselves as Real Estate Agent so amount paid will be treated as tax, not just an amount of money On impugned amount of tax, section 11B will be rightly applicable to deny refund claim

Summary

Issues:
Claim for refund of service tax paid for the period April, 2000 to January, 2005 under Section 11B of the Central Excise Act read with Section 83 of the Finance Act, 1994. Applicability of time-bar and unjust enrichment to the refund claim.

Analysis:
The appellants undertook maintenance of certain apartments and collected maintenance charges, paying service tax regularly from March, 2001 to January, 2005. The Central Government proposed to levy service tax on repairs and maintenance of immovable property in 2005. The appellants applied for cancellation of their registration as Real Estate Agent in March, 2005, seeking a refund of service tax paid from April, 2000 to January, 2005. The original authority rejected the refund claim for the period within the limitation period and as time-barred for the period prior to March, 2004. The Commissioner (Appeals) favored the appellants for the prescribed period but remanded the case on unjust enrichment. The appellants obtained a partial refund for 2004-05. The appellants argued that the amounts paid were not service tax but money refundable, citing relevant case laws.

The Revenue contended that the time limit under the Central Excise Act applied to recovery of erroneously refunded amounts. The appellants had already received a refund for 2004-05 based on a Chartered Accountant's certificate showing non-collection of service tax from customers. The appellants argued that the refund was just money, not affected by Section 11B. The Tribunal noted the appellants' self-assessed tax payments as Real Estate Agents, which were accepted without challenge. The refund claim was for the tax assessed and paid. The Tribunal held that the amounts paid by the appellants for April, 2000 to February, 2004 were service tax, subject to Section 11B's limitation period, which had expired, justifying the rejection of the claim.

In conclusion, the Tribunal dismissed the appeal, emphasizing that the amounts paid by the appellants for the earlier period were indeed service tax, subject to Section 11B's limitation, which had lapsed. The Tribunal upheld the rejection of the refund claim for the period beyond the limitation period, despite the appellants' argument that the amounts were not service tax but refundable money.