AI Drafter 
TaxTMI 
TaxTMI 
2016 (6) TMI 158
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....earned C.A. for the respondent, we find that as per facts on record the respondents during the relevant period were registered with Service Tax Department under the category of construction of "Industrial and Commercial Services" and Work Contract Services. They were accordingly paying service tax as applicable on the amount received in advance towards taxable services to be provided by them after claiming an abatement under various notifications. 3. Vide their letter dated 24/4/2007 addressed to their Jurisdictional Range Superintendent of Service Tax Division, they submitted that they were paying service tax as a builder in view of the decision in the case of K. Raheja Development Corporation case. The Hon'ble Allahabad High Court has ....
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....er the Construction of Residential Services. 5. The said show cause notice stands adjudicated by the Assistant Commissioner, who vide his order dated 22/1/2010rejected the refund claim of Rs. 72,21,075/- as barred by limitation and the remaining amount of Rs. 32,67,569/- on account of non-submission of documentary evidence indicating that refund claim was related to payment of service tax for Construction of Residential Services. 6. Being aggrieved with the said order, the respondent filed an appeal before Commissioner (Appeals). The appellate Authority set aside the impugned order of the Original adjudicating Authority by observing that the said letter dated 24/7/2007 of the Assessee has to be held as filling of refund claim even for....
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....ng Service Tax as a builder in lieu of decision in K. Raheja Development Corporation case. The Allahabad High Court has turned down the said judgment in Revised Civil Misc. Writ Petition No. 997 of 2006 decided on 23/03/2007 in case of Assotech Reality Pvt. Ltd. vs. State of U.P. Accordingly being a builder, we are not liable to pay the Service Tax. However, we are depositing the Service tax in protest with the condition that in case it is decided in favour of builder, the same would be refunded to us. It is further submitted that, it is not applicable to the case at hand in as much as this decision was rendered on the facts of its own case. In our case, the company has not undertaken any construction work for and on behalf of prop....
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....ture, in case the disputed issue is settled in their favour. Further in the last line of the said letter, its stands stated by the Assessee that - "In view of the position explained above, you are requested to look into the matter and refund the service tax". It is the said line of the letter which stands held as refund application by Commissioner (Appeals). 10. In view of the fact that the respondent continued to make deposit of service tax and sought liberty to claim the refund of the same in future, the last line of the said letter is also required to be construed in a manner that the same relates to the refund of the service tax deposit in future by the Assessee. In case the respondent were seeking refund of the duty already paid by ....
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....nder the Act are bound by the provisions of the Act and no general limitation period can be adopted for grant of refund even in those cases where it was not required to be paid. The provisions of Section 11B of the Central Excise Act, 1944 lays down the limitation period of one year from th4e relevant date for claim of refund to be made by an Assessee unless the same has been paid under protest. Tribunal in the case of AGRO Pack vs. CCE, Surat-II reported as 2009(238)E.L.T. 750 (Tri.- Ahmd.), after taking into account the Hon'ble Supreme Court's decision in the case of Miles India Ltd. vs. Assistant Collector reported as 1987 (30) E.L.T. 641 (S.C.) has held that the general principles of law relatable to limitation cannot be adopted for gra....