2010 (4) TMI 391

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....d the Service Tax under the category of 'Business Auxiliary Services' during April, 04 to March, 06. Later on realizing that the service of 'Auctioneers' provided by them was not taxable during the period when they paid tax under category of 'Business Auxiliary Services', they filed a refund claim on 29-3-2007. It was at the insistence of the department that they paid the tax under 'Business Auxiliary Services'. The service of Auctioneers became taxable only w.e.f. 1-5-2006. A show-cause notice was issued to reject the claim as barred by limitation. It was also alleged that the tax was paid without raising any protest and it was asserted by the department that the tax was correctly paid as tax claimed as refu....

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....contention, he placed reliance on Jumax Foam Pvt. Ltd. v. UOI reported in 2003 (157) E.L.T. 252 (Del.), CCE., Pune-II v. Beharay & Rathi Constructions - 2009 (14) S.T.R. 246 (Tri.-Mum.) and Karnik Maritime Pvt. Ltd. v. CCE., Mumbai-I - 2008 (12) S.T.R. 145 (Tri.-Mum.). 4. On the other hand, the respondent submitted that Auctioneers services have came into Service tax net w.e.f. 1-5-2006 and prior to that the same was not liable for service tax under the category of 'Business Auxiliary Services, as held by this Tribunal in the case of Karvy Consultants Ltd. (supra), wherein it was held "when an existing tariff definition remains that same, then the introduction of new Tariff entry would imply that the coverage under the new Tariff for....

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....w entry and prior to that entry, Service Tax liability is not applicable. In this case, I find that Auctioneer service came into net of Service Tax w.e.f. 1-5-2006 and there is no change in the entry of 'Business Auxiliary Services', I hold that the Service Tax liability under the head of Auctioneer service is applicable w.e.f. 1-5-2006. 8. Now, I come to the second issue. The learned DR submitted that refund claim is barred by limitation as it has been filed beyond the period of limitation and to support this contention, he placed reliance on Jumax Foam Pvt. Ltd. (supra) and Karnik Maritime Pvt. Ltd. (supra). In this case, they paid tax voluntarily, no protest was lodged and they have recovered the service tax also from their cl....