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2016 (9) TMI 790 - HC - Service TaxRefund claim - Did the Tribunal fall into error in holding that the refund claim made by the appellant was not maintainable - construction activity - appellant deposited Service tax under protest - Held that:- the CESTAT clearly fell into error of law. The proviso to Section 11B clearly indicates that if the amounts are paid under protest, the limitation prescribed by the main portion, i.e. Section 11B(1) would not apply. Even otherwise, once it is admitted that the levy itself came into force with effect from 01.07.2010 per se, amounts collected without authority of law fall beyond the imprint of expression or expropriation under pretence of authority of law. Therefore, the fundamental question of the appellant or any other assessee seeking recourse being restricted by the period of limitation under the statute authorising levy and its recovery should not arise. Furthermore, even if that reasoning were to be perused, the fact remains that the protest was lodged within reasonable time of the appellant becoming aware that the amounts were not recoverable as Service Tax. That is sufficient to attract proviso to Section 11B(1). - Decided in favour of appellant
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