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TMI Blog2023 (6) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... cellation of the flats booked by the said buyer? 3. The facts of the matter in brief are as follows. The appellant is engaged in providing Construction of Residential Complex Service. They constructed a residential complex Wind Shire at Nandoshi Village, Pune. Two customer viz. Ms. Sushma G. Ketkar and Ms. Sayali S. Wankar had booked their respective flats in the said project and entered into a duly registered sale agreement dated 26.4.2016 and paid the part payment alongwith service tax. The service tax paid by them of Rs.37,176/- and Rs.47,617/- respectively was deposited by the appellant with the exchequer. Later on due to some reasons both the bookings were cancelled by the customers on 20.6.2018 and the entire payment made by them was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be considered as 'deposit' only and keeping the said amount by the department is violative of Article 265 of the Constitution of India which specifically provides that "No tax shall be levied or collected except by authority of law." It is not the case of the department that the appellant is raising a fake claim. The only ground of rejection is section 11B ibid. When no service has been provided, as the booking has been cancelled, then how the tax on it can be retained by the exchequer and in what capacity? This amount has been paid by the customers and when they have cancelled the booking they want to get refund of their entire amount including the amount of service tax paid by them separately, which they are entitled to. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant cannot be said to be liable to pay service tax in any manner whatsoever inasmuch as what was paid by the appellant was not tax as envisaged under the Finance Act, 1994. Thus, the amount paid by the Appellant would not take the character of tax but is simply an amount paid under a mistake of law. The provisions of Section 11B ibid would, therefore, not be applicable to an application seeking refund thereof. Moreover, since the retention of the amount in issue by the department is without authority of law, the question of applying the limitation prescribed under Section 11B ibid would not arise. Even in case where any amount is paid by way of self assessment, if it has been paid by mistake or through ignorance, it is always open to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Central Excise, Nagpur v. M/s. SGR Infratech Ltd. (supra) are squarely applicable to the facts of the present case. 6. Both decisions have held the limitation prescribed under Section 11B of the said Act to be not applicable to refund claims for service tax paid under a mistake of law. The decision of the Supreme Court in the case of Collector of C.E., Chandigarh v. Doaba Co-Operative Sugar Mills (supra) relied upon by the Appellate Tribunal has in applying Section 11B, 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 11B of the Act to the present case w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3/- cannot be barred by limitation, and ought to be refunded. 14. There is no doubt in our minds, that if the Revenue is allowed to keep the excess service tax paid, it would not be proper, and against the tenets of Article 265 of the Constitution of India. On the facts and circumstances of this case, we deem it appropriate to pass the following directions:- (a) The Application under Section 11B cannot be rejected on the ground that is barred by limitation, provided for under Section. (b) The claim for return of money must be considered by the authorities." 9. On similar lines, this Tribunal also in the matter of Javed Akhtar vs. CGST, Mumbai West; [2021] 132 taxmann.com 166 (Mumbai - CESTAT) in Service Tax Appeal No. 85611 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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