Time-limit of Section 11B of the Central Excise Act, 1944 doesn’t apply to refund of wrongly paid Service tax

Dear Professional Colleague,

Time-limit of Section 11B of the Central Excise Act, 1944 doesn’t apply to refund of wrongly paid Service tax

We are sharing with you an important judgment of CESTAT, Mumbai, the case of Jyotsana D. Patel Vs. Commissioner of Central Excise, Nagpur [2014 (10) TMI 642 - CESTAT MUMBAI ] on following issue:

Issue:

Whether the Time-limit prescribed under Section 11B of the Central Excise Act, 1944 would apply to refund of wrongly paid Service tax?

Facts and background:

In the instant case, Jyotsana D. Patel (“the Appellant”) purchased a residential unit from a builder, on which the builder had collected Service tax and deposited the same with the Department. As there is no levy of Service tax on residential unit as held by the Hon'ble High Court in the case of K.V.R. Constructions Vs. CCE [2009 (8) TMI 150 - KARNATAKA HIGH COURT ], the Appellant filed a refund claim of the amount paid by the builder as Service tax to the Department. The refund claim filed by the Appellant was sanctioned by the Adjudicating Authority.

Thereafter, on appeal being filed by the Revenue before the Commissioner (Appeals), the Commissioner (Appeals) held that the refund claim is barred by limitation. Being aggrieved, the Appellant filed an appeal before the Hon’ble CESTAT, Mumbai.

Held:

The Hon’ble CESTAT, Mumbai held that when the Appellant was not required to pay any Service tax for acquisition of residential unit, amount deposited would not be considered as an amount of Service tax and therefore, time limit prescribed under Section 11B of the Central Excise Act, 1944 will not be applicable. Accordingly, Order of the Commissioner (Appeals) was set aside and the matter was decided in favour of the Appellant.

Hope the information will assist you in your Professional endeavors. In case of any query/ information, please do not hesitate to write back to us.

Thanks and Best Regards,

Bimal Jain

FCA, FCS, LLB, B.Com (Hons)

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