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2012 (12) TMI 673 - AT - Service TaxClaim for Refund - Whether the Service Provider for providing space in their buses was eligible for refund in respect of Service paid under the category of Courier Agency Service – Held that:- As decided in Mafatlal Industries [1996 (12) TMI 50 - SUPREME COURT OF INDIA] refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception : where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be re-opened on the basis of a decision on another person's case opined in Tilokchand Motichand case [1968 (11) TMI 86 - SUPREME COURT OF INDIA]. As assessee has filed the refund claim after three years from the date of payment. Therefore the refund claim filed by the assessee hit by time limit and not filed within time limit of one year as per section 11B of Central Excise Act, 1944, thus correctly rejected by the Adjudicating Authority - appeal filed by revenue is allowed.
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