TMI Blog2012 (11) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... al Order No. 699/2012 - Dated:- 25-10-2012 - SHRI P.G. CHACKO J. Mrs. Sabrina Cano, Superintendent (AR), for the respondent In this appeal filed by the assessee, the short question to be considered is whether their claim of refund of Rs. 1,20,218/- which was filed on 28.01.2009 is hit by limitation or not. The appellant has waived personal hearing. 2. The appellant had paid service tax on renting of various immovable properties during the material period. An amount of Rs. 1,20,218/- was paid on 16.01.2008 towards service tax on renting of an immovable property for boarding and lodging for the period from September to December 2007. Refund of this amount was claimed on 28.01.2009 on the ground that such tax was not liable to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nanore 2002 (144) E.L.T. 302 (Ker.) 2) Mysore Leasing Finance Ltd. Vs. Commr. of C.Ex., Cus. S.T., Mysore 2009 (14) S.T.R. 54 (Tri.-Bang.) 3.2. The learned Superintendent (AR) has endeavoured to distinguish the cases relied on by the appellant. It is submitted that, in the case of Hexacom (I) Ltd., the issue considered by the Tribunal was not one of limitation. In the case of Indian Ispat Works (P) Ltd., the cause of action for refund arose on account of the retrospective amendment of an exemption notification by Section 160 of the Finance Act 2003. In the case of Hind Agro Industries Ltd., refund was claimed of an amount which was not recognized as a payment made under the Customs Act and accordingly Section 27 of that Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty or tax paid by mistake of law can be claimed without the bar of limitation. According to the learned Superintendent (AR), this privilege cannot be claimed in respect of all and sundry payments of duty/tax. It is argued that only those refund claims arising out of declaration of unconstitutionality of statutory provisions can be said to be immune to time-bar. All other refund claims, irrespective of how the duty/tax happened to be paid, are subject to the limitation prescribed under the relevant statutory provisions. In this connection, reference has also been made to Mafatlal Industries Vs. UOI [1997 (89) E.L.T. 247 (SC)]. 4.2. The non-taxability of renting of immovable property to hotels is clear from the relevant provisions (vide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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