2012 (11) TMI 653

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....material period. An amount of Rs. 1,20,218/- was paid on 16.01.2008 towards service tax on renting of an immovable property for boarding and lodging for the period from September to December 2007. Refund of this amount was claimed on 28.01.2009 on the ground that such tax was not liable to be paid by virtue of Explanation 1 (d) to Section 65 (105) (zzzz) of the Finance Act 1994. The original authority rejected this claim, against which the claimant preferred an appeal to the Commissioner (Appeals). The appellate authority held that the refund claim was time-barred. Against this decision, the appellant has contended that, as the service tax was paid by mistake of law , Section 11B of the Central Excise Act is not applicable to the refund ....

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.... Ltd., the cause of action for refund arose on account of the retrospective amendment of an exemption notification by Section 160 of the Finance Act 2003. In the case of Hind Agro Industries Ltd., refund was claimed of an amount which was not recognized as a payment made under the Customs Act and accordingly Section 27 of that Act was held inapplicable. The learned Superintendent (AR) has therefore argued that the case law cited by the appellant cannot be applied to the instant case.   4.1. I have given careful consideration to the submissions. As per Section 65 (105) (zzzz) of the Finance Act 1994, taxable service means any service provided, or to be provided, to any person, by any person in relation to renting of immovable propert....

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....id to be immune to time-bar. All other refund claims, irrespective of how the duty/tax happened to be paid, are subject to the limitation prescribed under the relevant statutory provisions. In this connection, reference has also been made to Mafatlal Industries Vs. UOI [1997 (89) E.L.T. 247 (SC)]. 4.2. The non-taxability of renting of immovable property to hotels is clear from the relevant provisions (vide supra). These provisions were in force from day one. Nevertheless, the appellant paid service tax. After the period of limitation prescribed under Section 11B of the Central Excise Act read with Section 83 of the Finance Act 1994ran out, they realized their mistake of law and claimed refund of the tax paid. Today their argument is that th....