TMI Blog2009 (8) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... question is whether Section 11-B of the Act is attracted to effect refund - Section 11B provides for making a claim to refund duty. Admittedly, the sums deposited by the petitioner is held to be a deposit and not as a duty, therefore, there was no necessity for the petitioner to have made a claim invoking Section 11B of the Act for refund - claim for refund is sustainable - 16773 of 2009 (T-TAR), - - - Dated:- 11-8-2009 - Ram Mohan Reddy, J. S/Shri V.R. Balasubramani and M. Nagendra, Advocates, for the Petitioner. Shri N.R. Bhaskar, SCGSC, for the Respondent. [Order]. - The petitioner carries on construction activity and in the process though not liable to pay service tax under Finance Act, 1994, nevertheless paid amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anitation or philanthropic purposes and not for the purposes of profit, the said services are not taxable, being non-commercial in nature. Since this clarification issued by the Board vide Circular No. 80/10/2004 dated 17-9-2004 is very clear on the issue, the construction services undertaken by M/s. K.V.R. Construction is not taxable in nature and the assessee is not liable to pay any service tax and he has paid it under the misunderstading of law. Since the amount collected by the Government is not at all payable by the assessee this amount would resemble the amount collected without any authority of law. Hence the amount paid by them is not service tax but in the nature of deposit with the Government. This issue has been discussed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue, treated as a deposit at the hands of the Government, the question is whether Section 11-B of the Act is attracted to effect refund? 5. Section 11B provides for making a claim to refund duty. Admittedly, the sums deposited by the petitioner is held to be a deposit and not as a duty, therefore, there was no necessity for the petitioner to have made a claim invoking Section 11B of the Act for refund. 6. In the circumstances, the Asst. Commissioner of Central Excise by a misconception of law assumed that Section 11-B of the Act applied, so as to decline the petitioner's claim for refund of the amount in deposit, on the premise that the claim was beyond the period of limitation. The order impugned insofar as it relates to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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