TMI Blog2007 (10) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... in March, 2001 and were paying service tax regularly since then upto January, 2005. The Central Government proposed to levy service tax on repairs and maintenance of immovable property in their 2005 budget, which fact became known to the appellants towards the end of February, 2005 (the proposal became law with effect from 16-6-2005). The appellants accordingly applied for cancellation of their registration as Real Estate Agent in March, 2005. Simultaneously, they also applied for refund of the service tax which they had paid for the period April, 2000 to January, 2005. This claim was made under Section 11B of the Central Excise Act read with Section 83 of the Finance Act, 1994. The original authority rejected the claim for refund for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l would argue, the provisions of time-bar and unjust enrichment are not applicable to the subject claim for refund. In support of this argument, learned Counsel has relied on the following decisions (i) Commissioner of Central Excise, Bangalore-III v. Motorola India Pvt. Ltd. [2006 (206) E.L.T. 90 (Kar.)]. (ii) Commissioner of Central Excise, Jaipur v. Indian Ispat Works (P) Ltd. [2006 (3) S.T.R. 161 (Tri.-Del.)]. 3. Apart from reiterating the findings of the Commissioner (Appeals), learned SDR has also referred to the Apex Court's judgment in Collector of Central Excise, Chandigarh v. Doaba Cooperative Sugar Mills [1988 (37) E.L.T. 478 (S.C.)], wherein the time limit under the Central Excise Act was held to be applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the refund-granting authority that the claim of refund for the period 2004-05 has been sanctioned as a refund of service tax paid for the said period, on the basis of a certificate of the appellant's Chartered Accountant, who certified that the amount had not been collected by the party from their customers. Learned Counsel has submitted that his clients have since obtained the amount also. It would thus appear that the appellants are estopped from contending that the refund since obtained by them is not a refund of tax but one of an amount of money simplicitor. Their Chartered Accountant showed it to be an amount of service tax paid during 2004-05 and also certified that the claim for its refund was not barred by unjust enrichment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame were never challenged by either side. The refund claim in question was for the amount of tax so assessed and paid. In the circumstances, it is not open either to the assessee or to the Revenue to contend that the amount paid by the appellants in terms of the returns filed by them was not a tax. In any case, the appellants, having enjoyed the relief granted by the lower appellate authority for the period 2004-05, cannot contend that the amount paid by them for the prior period (April, 2000-February, 2004) was not service tax. That amount was service tax paid by the appellants in the category of Real Estate Agents under Section 65(88) of the Finance Act, 1994 and the same would not cease to be service tax by mere reason of the fact that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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