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2021 (10) TMI 488 - HC - Service TaxRefund claim - Applicability of time limitation on refund of service tax - assessee paid service tax on the LPC inadvertently for the period April 2009 to March 2011 - whether the amount paid by the assessee under a mistaken notion by the assessee was refundable? - section 11B of CEA - HELD THAT:- Mere payment made will neither validate the nature of payment nor the nature of transaction. The same could not make it a service tax. When there is a lack of authority to collect such service tax not liable to be paid by the assessee, it would not give the Department the authority to retain the amount paid by the assessee. Therefore, mere nomenclature would not be an embargo on the right of the petitioner to demand refund of payment made under a mistaken notion. Indisputably, the exemption notification is not under consideration. If the payment made by a mistaken notion does not come within the realm of `duty', Section 11B of the Act, 1944 would not be applicable. The arguments of the learned counsel for the Revenue that no material evidence was placed to show that in the account statement of invoice/bill, etc, it was shown that delayed payment charges was indicated separately, is wholly misconceived since the Commissioner of Service Tax (Appeals) has categorically held that the rejection of the claim by the adjudicating authority without considering the certification issued by the chartered accountant amounts to technical/procedural lapses which should not be a ground for rejection of refund. The period of limitation would not be applicable in the present case - Appeal allowed - decided in favor of appellant.
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