TMI Blog2017 (10) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax paid under a mistake of law. The impugned order is erroneous in that it applies the limitation prescribed under Section 11 B of the Act to the present case were admittedly Appellant had paid a service tax on Commercial or Industrial Construction Service even though such service is not leviable to service tax - appeal allowed - decided in favor of appellant. - Central Excise Appeal No. 306 of 2016, Central Excise Appeal No. 16 of 2017 - - - Dated:- 13-10-2017 - A. S. Oka And Riyaz I. Chagla, JJ. Mr. B.J. Raichandani, with Mr. Anshul Jain, for the Appellant Mr. M. Dwivedi, with Ms. Shalaka Gujjar, for the Respondent JUDGMENT ( Per Riyaz I. Chagla J. ) 1. The Appellants by the present Appeals are chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued to the Appellant by the Assistant Commissioner to show cause as to why the Appellant's claim for refund shall not be rejected. The Appellant filed a detailed reply to the show cause notice. The Assistant Commissioner vide Order-in-Original No. 05/ST.(R)/2009 dated 31st March 2009 rejected the refund claim for ₹ 9,73,292/- filed by the Appellant as not been sustainable on account of the refund claim being time barred under the provisions of Section 11 B of the Central Excise Act, 1944. The refund claim of ₹ 2,89,608/- was allowed. The Appellant being aggrieved and dissatisfied with the said orders filed Appeal before the Commissioner of Central Excise (Appeals), Nashik. By Orderin- Appeal dated 18th November 2009, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereby the upheld the orders of the Commissioner (Appeals). Mr. Raichandani has relied upon a judgment of the Division Bench of this Court in Hindustan Cocoa Products Vs. Union of India 1994 (74) ELT 525 (Bom.) and another judgment of Division Bench of this Court (Nagpur Bench) in the case of The Commissioner Central Excise, Nagpur Vs. M/s. SGR Infratech Ltd. Central Excise Appeal No. 26 of 2014 dated 28th October 2015 in support of his contention that, the limitation prescribed under Section 11 B of the said Act is not applicable, where admittedly the tax could not have been demanded and / or service tax was paid under a mistake of law. Mr. Raichandani has also submitted that the Supreme Court order relied upon by the Appellate Tribunal vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Operative Sugar Mills (Supra) relied upon by the Appellate Tribunal has in applying Section 11 B, limitation made an exception in case of refund claims where the payment of duty was under a mistake of law. We are of the view that the impugned order is erroneous in that it applies the limitation prescribed under Section 11 B of the Act to the present case were admittedly Appellant had paid a service tax on Commercial or Industrial Construction Service even though such service is not leviable to service tax. We are of the view that the decisions relied upon by the Appellate Tribunal do not support the case of the Respondent in rejecting the refund claim on the ground that it was barred by limitation. We are, therefore, of the view that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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