TMI Blog2019 (3) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... is case. The refund claim filed by the appellant is within time - Refund allowed - appeal allowed - decided in favor of appellant. - Appeal No.ST/60671/2018-EX (SM) - A/60081/2019-SM[BR] - Dated:- 6-2-2019 - Mr. Ashok Jindal, Member (Judicial) Shri Akhil Gupta, Advocate for the appellants Shri G.M. Sharma, AR for the respondent ORDER Per ASHOK JINDAL: After hearing the parties, short issue emerges whether the refund claim filed by the appellant is barred by limitation or not. It has been declared that services provided by the appellant are non taxable. 2. The facts of the case are that the appellant is a contractor and engaged in providing construction service who undertakes construction of flats for B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise Act ,1944 and as per the said section, the time limit prescribed for filing the refund claim is within one year from the date of payment of duty. The appellant filed refund claim beyond a period one year from the date of payment of service tax. Therefore, the Commissioner (Appeals) has rightly held that refund claim by the appellant is barred by limitation. 5. Heard the parties. 6. On careful consideration of the submissions made by both sides, I find that the issue has been examined by the Hon ble High Court in the case of National Institute of Public Finance and Policy (supra) wherein the Hon ble High Court has observed as under:- 4. Concededly, at the relevant time service tax was not payable for any of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of limitation prescribed in the Central Excise Act and the Rules framed there-under. 7. This court is of the opinion that the CESTAT clearly fell into error. Krishna Carbon Paper Co. (supra) was a case where principal duty was payable; excess amount had been paid on a mistaken notion with respect to the liability for excess production under a notification which was later discovered to be not correct. In the present case, levy never applied - a fact conceded by no less than the authority of CBEC. In these circumstances, the general principle alluded to in Krishna Carbon Paper Co. (supra) would apply. Consequently, the appeal has to succeed and is therefore allowed. The appellant shall be entitled to refund of entire amount with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 11B of the Central Excise Act, are not applicable. In that circumstances, I set aside the impugned order and allow the appeal with consequential relief, if any. 4. In view of the above, I hold that the refund claim filed by the appellant is not barred by limitation in terms of Section 11B of Central Excise Act, 1944. Therefore, the impugned order quo reject order of refund claim is set aside. 8. On going through the above cited decision by the Ld. Counsel, I am of the considered view that in the facts and circumstances of the case, it is admitted fact that the appellant is not liable to pay service tax on the said activity. Therefore, time limit prescribed under Section 11B of the Central Excise Act,1944 is not applic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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