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2019 (11) TMI 564 - AT - Service TaxRecovery of the service tax amount collected from the customer - Invocation of Section 73A of the Finance Act, 1994 - recovery sought on the ground that the appellant had claimed the benefit of N/N. 24/2007-ST dated 22.05.2007 and the benefit of the said notification was availed by the appellant, was not passed on to the customer - HELD THAT - It is an admitted fact on record that the disputed amount in question was paid back by the appellant to its customer subsequent to issuance of the show cause notice. Thus, under such circumstances, it cannot be said that the provisions of Section 73A ibid should be applicable for recovery of such amount, considering the same as a collection of excess service tax from the customer. Under an identical situation, this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS VINAYAK AGROTECH LTD. 2012 (5) TMI 524 - CESTAT, NEW DELHI where it was held that In terms of the provisions of Section 11D, the respondents have collected any duty from their customers representing the same as excess duty. As such, demand in terms of Section 11D is not required to be confirmed against the respondents. Appeal allowed - decided in favor of appellant.
Issues:
Recovery of service tax amount under Section 73A of the Finance Act, 1994 based on Notification No. 24/2007-ST dated 22.05.2007. Interpretation of applicability of Section 73A in a case where the service tax amount collected from the customer was subsequently refunded by the appellant. Analysis: The case involved a dispute regarding the recovery of service tax amount under Section 73A of the Finance Act, 1994, concerning the benefit claimed under Notification No. 24/2007-ST dated 22.05.2007. The appellant, engaged in providing taxable services under immovable property service, rented its property to a customer and issued monthly rental invoices with service tax. The appellant claimed the benefit of the said notification but did not pass it on to the customer, leading to a demand for recovery by the department. The Commissioner (Appeals) upheld the demands, prompting the appeal. The appellant argued that the refunded amount to the customer post-show cause notice negates the applicability of Section 73A. Citing legal precedents like R.S. Joshi, Sales Tax Officer, Gujarat Vs. Ajit Mills Ltd. and Commissioner of Central Excise, Jaipur Vs. VinayakAgrotech Ltd., the appellant contended that upon refund to the customer, Section 73A should not be invoked. On the contrary, the Revenue maintained the validity of invoking Section 73A, emphasizing the non-passage of the benefit to the customer and the risk of unjust enrichment by the appellant. The Tribunal, after hearing both sides and examining the facts, concluded that the refunded amount to the customer post-show cause notice precludes the application of Section 73A for recovery. Drawing parallels with a prior decision under Section 11D of the Central Excise Act, the Tribunal rejected the Revenue's appeal, highlighting the inapplicability of recovery under Section 73A in the given circumstances. Consequently, the impugned order was set aside, and the appellant's appeal was allowed, emphasizing the non-applicability of Section 73A in the case at hand.
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