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TMI Blog2025 (5) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... truction of residential complex service' and paying Service Tax during the period from 01.10.2007 to 30.06.2011. After this, when they came to know that they were not liable to pay Service Tax on such services, they sent a letter to the jurisdictional Assistant Commissioner on 17.08.2011 (duly acknowledged by that office) stating that they are not required to pay Service Tax on such activity and that henceforth they would not be paying any Service Tax. 1.1. After stoppage of Service Tax payment with effect from 18.08.2011, no demand was raised by the Revenue. 2. The appellant filed a refund claim on 16.09.2011 for the period from 01.10.2007 to 30.06.2011. After not receiving any communication about the refund claim so filed, they filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax in the normal course and only after receiving the clarification from the Department of Revenue, TRU on 14th May, 2010, which was received by them much later, they had come to know that no Service Tax was payable when the activity is that of construction of residential complexes which are to be used by employees of the Government of India. He submits that, therefore, the Service Tax paid by the appellant is not in the nature of tax at all; this amount has been paid by mistake and hence, the provisions of Section 11B of the Act would not be applicable. 5.1. He relies on the case-law of M/s. OIL India Ltd. v. Commissioner of Central Excise and Service Tax, Dibrugarh [2023 (385) E.L.T. 422 (Tri. - Kolkata)] wherein it has been held that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.2013, wherein it is mentioned that their refund claim was rejected by way of an order dated 17.02.2012. We observe that even under this RTI reply, copy of the said order dated 17.02.2012 was not enclosed. 7.1. However, as a matter of abundant precaution, the appellant filed their refund claim once again on 22.08.2013 which was taken up for processing by the adjudicating authority, who has rejected it on the ground that the refund claim was filed beyond the time-period specified under Section 11B of the Act. The Ld. Commissioner (Appeals), in the impugned order, has gone on a different tangent altogether and dismissed the appeal filed by the appellant before him on a totally new ground, which cannot be legally sustained. 7.2. We find th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en notions would not be hit by the statutory limitation period. This was noted by the referral Bench and ultimately the appeal was decided in favour of the assessee. Relevant portions of the said order have been extracted below :- The Third Member has expressed his opinion as follows : 39. The reference is accordingly, answered in the following manner : "The limitation prescribed under section 11B of the Excise Act would not be applicable if an amount is paid under a mistaken notion as it was not required to be paid towards any duty/tax" In terms of the opinion expressed by the Learned Third Member, this appeal stands allowed in favour of the appellant assessee. The appellant assessee shall be allowed grant of refund along with inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the applicant. The Hon'ble High Court of Bombay in Parijat Construction v. Commissioner of Central Excise - 2018 (359) E.L.T. 113 (Bom.) had also taken a similar view. 6. After appreciating the facts and also following the decisions cited above, I am of the view that the rejection of refund claim is unjustified. The impugned orders are set aside and the appeals are allowed with consequential benefits if any." 7.4. Further, in the case of Commissioner v. KVR Construction [2018 (14) G.S.T.L. J70 (S.C.)], the Hon'ble Supreme Court has dismissed the Special Leave Petition filed by the Revenue against the decision of the Hon'ble Karnataka High Court. 8. In view of the above, we observe that the issue stands squarely covered by the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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