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2015 (11) TMI 911 - AT - Service TaxRefund of the service tax - Double payment of service tax - appellant have made first payment when there was no liability for them to pay - Period of limitation to be computed with the first payment or subsequent payment - Section 11B - Held that:- Appellant had paid the amount twice to the department. The first payment was made in 2007 when there was no liability for them to pay the said amount since they had not received retention/ withheld amount. They paid appropriate service tax in March/ April 2010 when the retention/ withheld amount received by them. The adjudicating authority has held that second payment was in fact correctly paid service tax against the payment received by them in March and April 2010 and therefore there has been no excess payment during the said period, and was in order. When once there was no compulsion or duty cast to pay the service tax, the amount paid by assessee under mistaken notion, would not be a duty or “service tax” payable in law. Therefore, once it is not payable in law there was no authority for the department to retain such amount. By any stretch of imagination, it will not amount to duty of excise to attract Section 11B. Therefore, it is outside the purview of Section 11B of the Act Appellant is eligible for the refund of the amount deposited as it is double payment and it does not relate to tax, and also principle of unjust enrichment are not applicable in the instant case. Therefore, we hold that the appellant is eligible for the said refund. Therefore, the impugned orders cannot be sustained - Decided in favour of assessee.
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