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2022 (5) TMI 651 - AT - Service TaxRefund claim - time limitation - Whether the statutory time prescribed under section 11B shall be applicable to the amount erroneously deposited by the appellant despite having no liability to deposit the same? - reverse charge mechanism - HELD THAT:- From the bare reading of the section 11B, it is clear that the provision refers to the claim of refund of duty of excise only, it does not refer to any other amount collected without authority of law - In the case on hand, admittedly, the amount sought for as refund was the amount paid under mistaken notion which even according to the Department / Adjudicating Authority was not the liability of the appellant due to the prevalent exemption during the relevant period for the impugned services received by the appellant (payment was made under reverse charge mechanism). There is lack of authority to collect such service tax by the appellant. It would not give the Department an authority to retain the amount paid which otherwise was not payable by the appellant. Nothing may act as an embark on the right of the appellant to demand refund of payment made by them under the mistaken notion - The issue has been dealt by Hon’ble Supreme Court in the case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT]. It has been held that one has to see whether the amount claimed is unconstitutional and outside the provisions of section 11B of the Act. In the present case also, due to the exemption of N/N. 25/2012 dated 20.06.2012 the services on which the appellant had paid service tax i.e. non air conditioned contract carriage under rent a cab service was the exempted service. Hence at the time of the payment the payment had no colour of liability as already discussed above section 11B of Excise Act is not applicable. Hence, the bar of limitation under section 11B also cannot be made applicable upon the said amount. Appeal allowed - decided in favor of appellant.
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