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2023 (5) TMI 807 - CESTAT MUMBAIRefund of service tax with interest - Commissioner (Appeals) while deciding the appeal held that the refund claim to the appellant is admissible for the period after 18.04.2006 and could be rejected for the period prior to that - applicability of N/N. 41/2007-ST dated 06.10.2007 as amended by N/N. 17/08-ST dated 01.04.2008 - HELD THAT:- Once the Commissioner (Appeals) holds that there was no liability to pay service tax prior to 18.04.2006, then the refund claim should have been decided as per the provisions of Section 11B of the Central Excise Act, 1944. Undisputedly as noted by both the authorities, refund claim has been filed as per Notification No. 41/2007-ST dated 06.10.2007 as amended by Notification 17/08-ST dated 01.04.2008 read with Section B of the Central Excise Act, 1944 as made applicable to service tax under Section 83 of the Finance Act, 1994. There being so, the finding recorded by the Commissioner (Appeals) in para 6.5 itself is contrary and needs to be set aside. If the tax has been paid under mistake of law, the same could have been claimed as refund by way of refund claim made under Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. Appeal allowed.
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