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TMI Blog2020 (11) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... r facts; the remedy would be only under the statute. If that be so, the questions of law have to be answered in favour of the Revenue and against the assessee. But, however, we notice that the amounts have been refunded to the assessee as per the order of the original authority. Though, the question of law is answered in favour of the Revenue, the Revenue to be incapable of recovery of the amounts refunded as tax due - appeal is disposed of, answering the questions of law in favour of the Revenue; but restraining the respondent-Revenue from recovering the amounts refunded since as of now the levy of service tax on the payment in lieu of foreign agency commission will not be leviable as 'Business Auxiliary service' prior to 18.04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law raised are as follows: (a) Whether the Appellate Tribunal was right in setting aside the order passed by the Deputy Commissioner in refunding the amount collected illegally by the department? (b) When service tax on foreign agency commission came into force only on 18.04.2006 by the introduction of Section 66A in the Finance Act, 1994, whether the Tribunal erred in setting aside the order of refund on the ground of limitation in submitting the application for refund? (c) When the amount collected by the department does not have the colour of legality, whether Section 11B of the Central Excise Act, 1944 is attracted so as to refuse the claim of refund made by the assessee? (d) Whether the impugned order is against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court in CIT, Madras v. Mr.P Firm Muar [AIR 1965 SC 1216], wherein it was held as follows: If a particular income is not taxable under the Income Tax Act, it cannot be taxed on the basis of estoppel or any other equitable doctrine. Equity is out of place in tax law; a particular income is either exigible to tax under the taxing statute or it is not. If it is not, the Income-tax Officer has no power to impose tax on the said income . In such circumstances though we answer the question of law in favour of the Revenue, we find the Revenue to be incapable of recovery of the amounts refunded as tax due. The appeal is disposed of, answering the questions of law in favour of the Revenue; but restraining the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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