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2016 (6) TMI 415 - JHARKHAND HIGH COURT

2016 (6) TMI 415 - JHARKHAND HIGH COURT - 2016 (43) S.T.R. 345 (Jhar.) - Period of limitation - Refund claim - Erection, Commissioning and Installation Services - Amount deposited by mistake for the period prior to 16.06.2005 as the services provided by the petitioner was added in the Finance Act, 1994, for the payment of Service tax with effect from 16.06.2005 - Held that:- the show cause notice was given by the respondents on 20.11.2009 for the payment of service tax for the year 2004-05 and f .....

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t case because, the amount paid by the petitioner is never under the Central Excise Tax nor under the service tax when there is no liability to make the payment of the amount and under the mistake of facts or under mistake of law or under both if any amount is deposited by the assessee, the same cannot be retained by the Union of India under the one or other pretext when a service provider is not liable to make payment of the service tax and if any payment is made, it cannot be covered under Sec .....

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ed by this petitioner despite there is no liability to make payment of any type of tax under any law much less as a service tax. Thus, the aforesaid amount was paid by mistake. Hence, it ought to have been given back to the petitioner. 2. Learned counsel appearing on behalf of the petitioner has submitted that the petitioner is providing services mainly viz Erection, Commissioning and Installation Services . This is added in the Finance Act, 1994, with effect from 16.06.2005. Thus, for the afore .....

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spondents under the mistake of fact and law both and hence, this petitioner is seeking return of his money. 3. Learned counsel appearing on behalf of the respondents has submitted that under Section 11B of the Central Excise Act, 1944 to be read with Section 83 of the Finance Act, 1994, now refund claim is time barred and hence, this petitioner is not entitled to refund and the petitioner has not paid the tax under the protest. 4. Having heard learned counsels for both the sides and looking to t .....

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e respondents on 20.11.2009 for the payment of service tax for the year 2004-05 and for the year 2005-06. This amount was never recovered by this petitioner from the persons to whom the services were provided by this petitioner in the relevant years. 7. Looking to the paragraph no.06 of the affidavit filed by the Assistant Commissioner, Central Excise & Service Tax, Jharkhand, which reads as under :- 6. That in reply to para 11 of the writ application it is stated and submitted that since th .....

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