Appeal success: Order overturns denial of refund due to time-bar, citing non-leviability of service tax on residential units.

The appeal was allowed, and the impugned order setting aside the refund of &8377;45,000 sanctioned by the Adjudicating Authority was overturned. The Commissioner (Appeals) had initially held the refund claim as time-barred, but the Member found that the appellant was entitled to the refund due to the High Court ruling on the non-leviability of service tax on residential units. As a result, Section 11B of the Central Excise Act, which deals with time limits for refunds, was deemed inapplicable, leading to the successful outcome for the appellant.

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Issues:
Appeal against refund order set aside by Commissioner (Appeals), applicability of Section 11B of Central Excise Act on refund claim, time limitation on refund claim.

Analysis:
The appellant appealed against the impugned order where the refund of &8377; 45,000/- sanctioned by the Adjudicating Authority was set aside by the Commissioner (Appeals). The appellant, owner of a residential unit, filed a refund claim as the builder had collected service tax during acquisition, which was later found to be not leviable on residential units as per a High Court ruling. The Adjudicating Authority granted the refund, stating the appellant was entitled to it. However, the Commissioner (Appeals) held the refund claim was time-barred. The appellant, though not present, submitted written arguments. The Member found the appeal could be disposed of without a pre-deposit and proceeded to consider it. It was established that no service tax was due for the acquisition of the residential unit based on the High Court ruling. Consequently, Section 11B of the Central Excise Act, dealing with time limits for refunds, was deemed inapplicable. The impugned order was set aside, and the appeal was allowed with consequential relief. The stay petition was also disposed of accordingly.

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