TaxTMI 
TaxTMI 
2014 (1) TMI 413
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....o. 141/2006 (Ahd-III)CE/DK/Comm(A) dt 1/9/2006 of GE Nuovo Pignone, Mumbai, the Service Tax on maintenance and repair, service of immovable property was leviable only w.e.f 15/6/2009 and period from 1/7/2003 to 9/9/2004. As the service tax was paid due to mistake of law, therefore, no time limit is applicable as per the following case laws: i) Hindustan Cocoa Products vs. UOI -1994(74) ELT. 525 (Bom). ii) Indo Nippon Chemicals Co Ltd vs. UOI -2005(185)ELT. 19(Guj.) iii) Industrial Plastic Corpn Pvt Ltd., vs. UOI -1992(57)ELT. 390(Bom). iv) CCE Mumbai II vs. Allied Photographics India Ltd -2004(186)ELT-3(SC). 2.1 Learned Advocate also furnished a copy of certificate dt 3/12/2013 from a cost accountant to the effect that unjust enrichmen....
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....fore set aside the demand. 5. In view of the above, when duty was paid under protest or when an assessee is contesting the leviability of a tax by filing appeals the entire payment of tax, during the period of contest, is treated as deemed protest and time bar is not applicable in such cases. Further, it is also a case of payment of service tax under mistake of law and as per the case laws relied upon by the appellant in Para - 2 above the present refund claim will not be time barred. 6. So far as the issue of unjust enrichment applicability is concerned, Hon'ble Supreme Court in the case of CCE., Mumbai vs. Allied Photographics India Ltd., [2004 (166) ELT 3 (SC)] has held in para 13 as follows: ....
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....e resale price charged by a wholesale dealer who buys goods from the manufacturer cannot be included in the real value of excisable goods in terms of Section 4 of the said Act. Therefore, it is clear that the basis on which a manufacturer claims refund is different from the basis on which a buyer claims refund. The cost of purchase to the buyer consists of purchase price including taxes and duties payable on the date of purchase (other than the refund which is subsequently recoverable by the buyer from the Department). Consequently, it is not open to the buyer to include the refund amount in the cost of purchase on the date when he buys the goods as the right to refund accrues to him at a date after completion of the purchase depending upon....