TMI Blog2017 (10) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... fund to be allowed - appeal allowed - decided in favor of appellant. - Appeal No. ST/23873/2014 - Final Order No. 21894/2017 - Dated:- 24-8-2017 - Mr. M. V. Ravindran, Member ( Judicial ) Shri M.S. Nagaraja, Advocate for the Appellant Shri P. Rajam/AR for the Respondent ORDER [ Order Per : Mr. M. V. Ravindran ] 1. This appeal is directed against Order-in-Appeal No. BGM-EXCUS-000-HUB-AC-APP-HAB-072-2014, dated 15.10.2014. 2. Heard both sides and perused the records. 3. The relevant facts that arise for consideration in this appeal, after filtering out unnecessary details, are that appellant herein had let out certain area of immovable property to Employees State Insurance Corporation, Hubli (hereinafter referred to as ESIC) on rental basis during the period August 2010 to August, 2012 and discharged the service tax liability thereon. Having been told by ESIC that they are not required to pay the service tax, appellant filed refund claim with the lower authorities on 24.01.2013 on the ground that service tax paid by them for the amount received from ESIC, service tax is not leviable as the said premises is let out to government organisation. Show Cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... astik Sanitarywares Ltd. v. Union of India [2013(296)E.L.T 321(Guj.)] and Joshi Technologies International v. Union of India [2016(339)ELT 21 (Guj.)]. For the propositions of these High Courts have specifically recorded that if any amount is paid under mistake of law and refund is claimed, then such claim cannot be called as hit by limitation. 5. Ld. DR on the other hand submits that facts are not much in dispute. He would submit that there is no dispute to the fact that refund claim has been filed on 24.01.2013 beyond the period of one year as contemplated in Section 11B of Central Excise Act, 1944, made applicable to Finance Act, 1994. He relied on the decision of Hon ble High Court of Punjab Haryana in the case of Sarita Handa Exports (P) Ltd. [2015 (321)ELT 434 (P H)] for the proposition that even if duty is paid on exported excisable goods which was not payable, application for refund has to be filed within the prescribed statutory period as per Section 11B of Central Excise Act, 1944. 6. On careful consideration of the submissions made by both sides, I find that the issue is whether the refund claim filed by the appellant is hit by limitation or otherwise. Facts are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim refund of the duty with reference to Section11B therefore, now it is not open to him to go back and say that it was not refund of duty. No doubt in the present case, Form-R was used by the applicant to claim refund. It is the very case of the petitioner that they were exempted from payment of such service tax by virtue of circular date 17.9.2004 and this is not denied by the Department and it is not even denying the nature of construction/services rendered by the petitioner was exempted from to payment of service tax. What one has to see is whether the amount paid by petitioner under mistaken notion was payable by the petitioner. Though under Finance Act, 1994 such service tax was payable by virtue of notification, they were not iable to pay, as there was exemption to pay such tax because of the nature of the institution for which they have made construction and rendered services. In other words, if the respondent had not paid those amounts, the authority could not have demanded the petitioner to make such payment. In other words, authority lacked authority to levy and collect such service tax. In case the department were to demand such payments, petitioner could have challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11B generally governs the claim for refund of duty and interest paid on such duty. The section has been made applicable for service tax also. In the case of KVR Constructions (supra), the Hon ble Kerala High Court has laid down yardsticks to decide those cases where Section 11B may not be applicable in service tax cases. The Hon ble High Court has held that, if there is no authority to collect service tax by the department, it would not give them the authority to retain the amount paid which was initially not payable by them. In the present case, the assessee-Appellants were rendering liaisoning service . The said services were not liable to service tax at the relevant time. Hence, the Department would not be in a position to collect service tax on the said activities since the same is not leviable. Consequently, in terms of the law laid down by the Hon ble Kerala High Court (supra), the Government will have no authority to retain the said amount and will have to be refunded. It may also be mentioned that in the case of Hind Agro Industries Limited (Supra), we find that the Hon ble Delhi High Court has circumscribed the above view by prescribing the period of three yea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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