Whether Service tax paid by back calculations i.e. service tax separately not charged will be covered under the scope of Sec.73A? Whether unjust enrichment provision will be applicable on such service tax payment?

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.

Dated: 3-4-2015