TaxTMI 
TaxTMI 
2011 (9) TMI 447
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.... providers. The assessee paid service tax on the interest collected from customers based on the self assessment made by them. Subsequently they realised that the interest charged on loans and advances are not liable for payment of service tax. Therefore they preferred a claim Petition on 1-12-2004 under Section 11B read with Section 83 of the Finance Act, 1994. In the said claim Petition they claimed refund of tax paid by them for the period July, 2001 to August, 2004. The adjudicating authority after considering the entire material on record passed an order on 25-4-2005 allowing the claim of the assessee in its entirety. The Commissioner of Central Excise in pursuance of the power conferred on him under Section 83 of the Finance Act, 1981 ....
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....itation is applicable and therefore the claim beyond one year is not barred by time. The party has a right to choose the Forum. On the ground that in the guise of choosing a Forum he chooses a wrong Forum he cannot be denied the relief. That is the order passed in the Writ Appeal directing refund of tax on his net proceeds arising under the Finance Act or the Central Excise Act, 1944. If the amount paid is not within the Act, the Act is not applicable. So any amount paid outside the Act could be recovered under the General law either by filing a suit or by filing a writ petition. There is no quarrel with the said legal position. In the instant case, the assessee has registered itself as a service provider under the Act. The tax paid by the ....
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.... unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception: where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be re-opened on the basis of a decision on another person's case; this is the ratio of the opinion of Hidayatullah, CJ. In Tilokchand Motichand and we respectfully agree with it. Such a claim is maintainabl....
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....be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception: where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be re-opened on the basis of a decision on another person's case; this is the ratio of the opinion of Hidayatullah, CJ. In Tilokchand Motichand and we respectfully agree with it. Such a claim is maintainable both by virtue of the declaration contained in Article 265 of the Constitution of India....