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TMI Blog2023 (9) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not the case of the Department that the appellants have issued invoices/ bills which indicate that service tax has been collected by the appellants from their customers. This fact is very much accepted by the learned Adjudicating Authority in the impugned order; the Certificate issued by M/s PACL indicates that the appellants have not charged any service tax to the customers. It is not clear from the case records whether the Department has challenged the certificate issued by M/s PACL. The allegation is sought to be established on the basis of loose calculation sheets. The facts of the case and the case records indicate that the appellants have not collected any amount representing as service tax from their customers i.e. M/s PACL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal (ST/1238/2011) against the demand dropped. 2. Shri Ajay Jain, Learned Counsel for M/s Pearls Buildwell (appellants in Appeal No.ST/1196/2011 and respondents in Appeal No. ST/1238/2011) submits that Headquarters Preventive Team visited their premises on 06.08.2008 and observed that they have undertaken Site Formation Services taxable under Finance Act, 1994; during the course of investigation, the appellants were made to deposit Rs.10,24,928/-, which the appellants deposited under Protest and have clarified vide letters dated 03.09.2008 and 06.10.2008 that they have not charged any service tax to their customers. 3. Learned Counsel further submits that learned Commissioner has analyzed the activity undertaken by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: SECTION 1 [73A. Service tax collected from any person to be deposited with Central Government. - (1) Any person who is liable to pay service tax under the provisions of this Chapter or the rules made thereunder, and has collected any amount in excess of the service tax assessed or determined and paid on any taxable service under the provisions of this Chapter or the rules made thereunder from the recipient of taxable service in any manner as representing service tax, shall forthwith pay the amount so collected to the credit of the Central Government. (2) 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 sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Act and such person may make an application under that section in such cases within six months from the date of the public notice to be issued by the Central Excise Officer for the refund of such surplus amount. 6. We find that, ongoing through the provisions of Section 73A that sub-clause 2 is applicable in the instant case. We find that to attract this clause, the noticee should have collected any amount, which is not required to be collected, in any manner as representing service tax. In the instant case, it is not the case of the Department that the appellants have issued invoices/ bills which indicate that service tax has been collected by the appellants from their customers. This fact is very much accepted by the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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