TMI Blog2018 (5) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... of circular, then the limitation would have been applicable. The decision of the Punjab & Haryana High court in the case of Sarita Handa Exports (P) Ltd. [2010 (9) TMI 254 - PUNJAB AND HARYANA HIGH COURT] is not applicable in the facts and circumstances of the case because in the present case, the limitation as held by the Bombay High Court would start from the day when the circular was issued clarifying that the appellants are not liable to pay service tax. Since the refund has been rejected on time bar and it is held that the refund is within period of limitation, the case is remanded back to the original authority to reconsider the refund claim of the appellant holding it within limitation and decide the same on merit - appeal al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not liable for service tax on the flat built by them and sold to the ultimate consumer as the service is in the nature of self-service. Based on the clarification, the appellant filed a refund claim of service tax amounting to ₹ 76,64,734/- on 01/05/2009. Thereafter show-cause notice was issued proposing to reject the refund claim. After following the due process, the Assistant Commissioner rejected the refund claim vide order dt. 09/06/2010. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) who vide the impugned order has granted the refund of ₹ 39,65,384/- and rejected the balance amount pertaining to the year 2007-08 of ₹ 36,69,348/- on the ground of time bar. Aggrieved by the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly availed was erroneously reversed on the insistence of the local Excise Authorities of the Department. Thus there was mutual mistake committed by the Departmental Authorities and the petitioner, as it is clearly a case of mutual mistake, we do not find any ground why the general law contained in Section 17 of the Limitation Act should not come to the rescue of the petitioner. Section 17 provides that where in a suit or application is based upon a mistake, the period of limitation would not begin to run until the plaintiff or the applicant has discovered, the mistake or could have, with reasonable, diligence discovered it. For the application of the general principle of Limitation mistake and so far as reasonable diligence is concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m.), so also the another Judgment of the Division Bench of this Court in Central Excise Appeal No. 26 of 2014, dated 28-10-2015. The said Judgments are squarely applicable to the facts of the present case. We would have considered the case of the revenue, in case the claim for refund would have been filed after lapse of one year of the issuance of the Circular. The Circular is only clarificatory in nature. As such, there is no question of its prospective or retrospective operation. 7. It is clear that for the transaction in question, the appellant was not liable to pay Service Tax. 8. In light of the above, the rejection of the claim on the ground of limitation is unjustifiable. 4.3. He also relied upon the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly, 1999 for which the excess amount was sought to be refunded. The order of the CESTAT is, therefore, palpably wrong and erroneous in law. 5. On the other hand, the learned AR relied upon the decision of the Punjab Haryana High Court in the case of Sarita Handa Exports (P) Ltd. vs. UOI [2015(321) ELT 434 (P H)] which was also upheld by Hon'ble Supreme Court as reported in 2015(321) ELT A206]. 6. After considering the submissions of both sides and perusal of the material on record, I find that in the present case, the service tax was deposited by the appellant without collecting from the service recipient. Thereafter the Board vide Circular No. 108/02/2009 dt. 09/01/2009 clarified that the appellants are not liable to servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m is within time. 7. In view of my discussion above, respectfully following the ratios of the Bombay High Court and the Apex Court in the decisions cited supra, I am of the considered view that the impugned order is not sustainable in law and therefore the same is set aside by allowing the appeal of the appellant. Since the refund has been rejected on time bar and I have held that the refund is within period of limitation, the case is remanded back to the original authority to reconsider the refund claim of the appellant holding it within limitation and decide the same on merit. The original authority before deciding the refund claim will afford an opportunity of hearing to the appellant to produce documents in support of their claim. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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