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2022 (9) TMI 854 - AT - Service TaxRefund of Service Tax - tax deposited on mistake of law - denial of refund on the ground that service tax was wrongly deposited by them on warehousing services provided - Negative list of services or not - refund denied on the ground of time limitation - applicability of period of one year as prescribed under Section 11B of the Central Excise Act - HELD THAT:- It is not in dispute that assessee is not liable to pay service tax in respect of warehousing services which is categorically specified in the negative list of the services. The Division Bench of the Hon’ble Karnataka High Court in KVR. CONSTRUCTIONS VERSUS COMMISSIONER OF CENTRAL EXCISE, BANGALORE [2009 (8) TMI 150 - KARNATAKA HIGH COURT] has examined the provisions of Section 11B at length and has also considered the judgement of Hon’ble Supreme Court in the case of Mafatlal Industries Ltd. vs. Union of India [1996 (12) TMI 50 - SUPREME COURT], where it was held that that 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. Hon’ble High Court of Bombay in the case of Parijat Construction Vs. Commissioner of Central Excise, Nashik [2017 (10) TMI 659 - BOMBAY HIGH COURT], had held that the limitation prescribed under 11B of the Central Excise Act, 1944, is not applicable to refund claim for service tax paid under mistake of law. Hon’ble Supreme Court in the case of Salonah Tea Company Ltd. Etc. v. Superintendent of Taxes, Nowgong & Ors. [1987 (12) TMI 3 - SUPREME COURT] had held that if there is no provision for realisation of the money under a statute, then the act of payment is ultra vires and such money, if paid, is not paid under such statute and accordingly, the provisions under such statute would not apply - it is found that even in the present case, the amount so paid by the Appellant was not payable during the relevant period. Since the issue already stands decided, there is no reason to deny the refund claim on the ground of limitation inasmuch as the period of limitation prescribed under Section 11B would not be a bar for the assessee to claim refund of tax paid under mistake - Ld. Commissioner (Appeals) has disputed the claim of refund on the ground that the appellant failed to produce reliable evidence to support the refund claim - appeal allowed - decided in favor of appellant.
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