9911796707
TMI Blog2013 (1) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Tax paid by him on the entry fee charged to non-members into the club. 4. The respondent herein has filed the refund claim for the amount paid by him mistakenly on the amount collected from non-members. The adjudicating authority, on an refund claim filed by the appellant, issued a Show-Cause Notice for rejection of the claim, on adjudication and dropped the proceedings initiated by Show Cause Notice and allowed the refund. Ld. Commissioner, as a revisionary authority under section 84 of Finance Act, 1994 reviewed the said order of the adjudicating authority and issued another Show-Cause Notice to the appellant, indicating him about the revision of such an order. The respondent replied to the Show-Cause Notice and appeared before the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the present case. Section 73A(2) of Finance Act, 1994 reads as: "Where any person who has collected any amount, which is not required to be collected, from any other person, in any manner as representing service tax, such person shall forthwith pay the amount so collected to the credit of the Central Government." In the instant case, the gross charges collected from the clients is inclusive of Service Tax which implies that certain portion of the gross amount is collected as representing Service Tax. Thus, such amount so collected as representing Service Tax was required to be deposited to the credit of Central Government which was rightly done so by the service provider. Subsequently, the question of refund of such amount does not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Both the lower authorities have held that the respondent is not liable to discharge the Service Tax liability on the non-members under the category of Club & Association Services. 9. I find strong force in the contention raised by the ld. Counsel that the respondent's issue is not hit by unjust enrichment. It is his submission that the Tribunal's de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing Asset Management Companies :- (i) M/s. Templeton Asset Management (India) Pvt. Ltd. (ii) M/s. Prudential ICICI Asset Management Company Ltd. (iii) M/s. J.M. Capital Management Limited. (iv) M/s. Deutsce Asset Management. (v) M/s. Kotak Mahindra Asset Management Company Ltd. 2. The above Companies certified that the amounts of commission paid to the Respondent was inclusive of all statutory levies and they were under no obligation to pay Service Tax over and above the amount paid as commission. It is the argument of the Respondent that it had borne the incidence from the total amount paid by Asset Management companies and, therefore, there was no question of passing on the incidence of Service T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the buyer. The Revenue challenged this decision before the High Court of Calcutta and the Hon'ble High Court affirmed the decision of the Tribunal [2004 (172) ELT 310 (Cal.)]. Revenue took the matter to the Supreme Court and the Supreme Court in CCE v. Panihati Rubber Ltd. 2006 (202) ELT 41 (SC) affirmed the decision of the Tribunal and the High Court in the matter. 4. We have considered these decisions and other decisions like that in Subah Engineers (P.) Ltd. v. CCE 2005 (183) ELT 362. It is very clear that this matter is no longer res integra and the Respondent is eligible for the refund claim and, therefore, we order that the refund amount should be paid to the Respondent forthwith. The Appeal filed by the department is rejected. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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