TaxTMI 
TaxTMI 
2016 (9) TMI 790
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....aintainable?" 2. Admit. 3. Issue notice. Sh. Pramod Kumar Rai, Advocate accepts notice. 4. The facts of the case are that the appellant is a builder engaged in construction activity. The levy of Service Tax was imposed by an amendment in the Finance Act, 1994 with effect from 01.07.2010. However, prior to that, apparently, the Service Tax Department had issued a Circular dated 16.02.2006, the effect of which was to advise all construction companies to pay Service Tax. The appellant complied and started depositing amounts for the periods in question, i.e. from 2006 onwards. On 24.04.2007, the appellant protested, contending that the amounts paid by them were not covered by the levy and that they had to be refunded the said amounts. ....
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....d at facilitating purchase of the property by these probable purchasers so that they may not be required to pay whole of the price at a time. Form the above, it cannot be inferred that the company us making construction for and on behalf of the probable customers. In view of the position explained above, you are requested to look into the matter and refund the service tax. Thanking you," 5. The appellant filed a refund claim on 26.02.2009, disclosing all the particulars, in the prescribed format, i.e. Form-R under Section 11B of the Central Excise Act, 1944. This claim was rejected in its entirety. The order-in-original observed as follows: "ORDER In view of the above discussions & findings, I rejec....
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....t, 1994 with effect from 01.07.2010, the amounts could be recovered only prospectively and not from a prior period. To this end, the CESTAT relied upon the decision reported as Union Bank of India v. M/s. Martin Lottery Agency Ltd. 2009-TIOL-60-SC-ST; Indian National Shipowners' Association v. UOI 2009 (14) STR 289 (Bom) etc. The appellate authority also took into consideration the Central Board of Excise and Customs Circular No.108/02/2009-ST dated 29.01.2009 and then concluded as follows: "The Hon'ble Bombay High Court vide judgment in the case of Indian National Shipowners' Association Vs. Union of India 2009 (14) STR 289 (Bom) and specifically held as under:- "38....Introduction of new entry and inclusion of certain se....
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....ral Excise Act, 1944 as made applicable to like matters of Service Tax by virtue of Section 83 of the Finance Act, 1994. 8. In view of the above, I set aside the impugned order and allow the appeal with consequential relief. Sd/- (V.K. SINGH KUSHWAH) COMMISSIONER (APPEALS) CENTRAL EXCISE, DELHI-I" 6. The revenue appealed to the CESTAT which was of the opinion that since the appellant continued to deposit the amounts with the Service Tax Department after lodging protest, per se no question of refund of amounts for the prior period, i.e. payments made before 24.04.2007 arose. It, however, remitted the matter for calculation of amounts, and refund in respect of the period after the refund particulars had been made over ....
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....s neither in appropriate format nor unequivocal about the disclaimer of liability, the assessee was not entitled to refund of amounts for the period prior to 24.04.2007. 9. This Court is of the opinion that the CESTAT clearly fell into error of law. The proviso to Section 11B clearly indicates that if the amounts are paid under protest - (in this case, the protest was filed before the expiry of one year) - the limitation prescribed by the main portion, i.e. Section 11B(1) would not apply. Even otherwise, once it is admitted that the levy itself came into force with effect from 01.07.2010 per se, amounts collected without authority of law fall beyond the imprint of expression or expropriation under pretence of authority of law. In these c....