9911796707
TMI Blog2014 (5) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... arging service tax separately and obvious conclusion would be that the service tax liability which they determined was paid from their own funds. In any case, they have also produced a Chartered Accountant’s certificate certifying that the service tax has not been collected. In the facts and circumstances of this case, I consider that there is no unjust enrichment. - Decided in favour of assessee. - ST/77/2009-SM - Final Order No .27047/2013 - Dated:- 2-12-2013 - Shri B.S.V. Murthy, J. For the Appellant : Shri I.S. Karthikeyan and Ms. Pallavi, Advocates For the Respondent : Shri A.K. Nigam, Addl. Commissioner(AR) JUDGEMENT Per : B.S.V. Murthy; The appellant is a telecom service provider. During the period 19/04/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21/06/2006, service tax was collected and paid to the Government and no refund claim was filed in respect of such payments by the appellants. While they took a decision in respect of future liability, the appellants also took a decision that from 19/04/2006 they would discharge the service tax liability and accordingly on their own, they calculated the liability treating the amount received by them as cum-tax receipts and paid the service tax. This is the amount which has been claimed as refund after the notification issued in 2007. 3. First of all, I find that both the lower authorities have not considered the provisions of Section 11C (2) at all. They have gone by the words used in the Notification No.36/2007 which reads as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re it has not been collected prior to the period mentioned in the notification. It does not speak of any refund to be given to the persons who have paid the tax during the period in which there was a practice of not levying or not collecting the tax. 4. However, the provisions of Section 11C (2) which has been made applicable to service tax matters is relevant and to appreciate facts better, Section 11C is reproduced as under:- SECTION 11C.?Power not to recover duty of excise not levied or short-levied as a result of general practice. - (1) notwithstanding anything contained in this Act, if the Central Government is satisfied - (a) that a practice was, or is, generally prevalent regarding levy of duty of excise (including non-levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said notification. Provisions of Section 11C (2) are very clear. There is no condition attached at all. Wherever a notification has been issued under Section 11C(1), persons who have paid the tax during the relevant period when there was a practice of not collecting or not levying can claim refund subject to the condition that the claim is filed within six months from the date of notification. Further Section also provides for dealing with the refund claim as per the provisions of Section 11B but for the time limit which is specified under Section 11C itself. With regard to the other aspects for examination of refund claim Section 11B is relevant. This is the sum and substance of Section 11C (2). This section has made applicable to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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