2014 (11) TMI 755

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....nt was of maintenance and repairs of immovable property like street light, electric installation etc. As the activity of maintenance and repairs of goods were made taxable on 01.07.2003. The appellant was under the impression that they are required to pay service tax, they kept paying the service tax till 15.06.2005. Later-on, when they realized that as the street lights are immovable property and they are not required to pay service tax, they filed a refund claim of the service tax erroneously paid by them which was not payable at all. The refund claim was rejected as time barred as prescribed under Section 11B of the Central Excise Act, 1944. Aggrieved by the said order, the appellant is before me. 3. Heard both sides. 4. The learned Co....

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....prays that the appeal be dismissed. 6. Considered the submissions made by both the sides and perused the records. 7. In this case, the first issue to be decided is whether the claim for refund of the service tax filed by the appellant was within the authority of law or not. This fact has not been disputed by the lower authorities and held that the service tax was not payable by the appellant during the impugned period. Therefore, the appellant is entitled for refund of whatever service tax paid by them. In the impugned order, it is held that the service tax paid by the appellant is not payable at the relevant time as there was no levy of service tax on the activity of the appellant. The case law relied upon by the learned A.R. in the case....

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.... in terms of the law laid down in Mafatlal Industries. It is obvious that when the Hon'ble Supreme Court talked of 'duty levied and recovered under an unconstitutional provision' the reference was not to a duty of customs or excise. Therefore, to rely upon either Mafatlal Industries or Anam Electrical Manufacturing Co. to deny the claim of the Appellants in this case is entirely misconceived." (supra) has considered the decision of the Hon'ble High Court of Delhi in the case of Hind Agro Industries Ltd. (supra) and arrived at a decision that where the service tax has been paid without any authority of law, in that case provisions of Section 11B of the Central Excise Act, 1944 are not applicable. Therefore, I hold that in th....