2017 (2) TMI 23

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....owing the Appeal of the Respondent contrary to the ground of limitation under the provisions of Section 11 B of the Central Excise Act, 1944 as made applicable to the service tax matters? (iii) Whether the Tribunal is correct in holding that the extended period of limitation is not invokable in terms of provisions of law as well as instructions issued by the CBEC? (iv) Whether the Tribunal is correct not to consider the theory of unjust enrichment? 2. Question (i) is merely formal. Question (iii) does not arise. Question (iv) has been decided in favour of the respondent/assessee on facts and the same, therefore, does not raise a substantial question of law. The appeal is, therefore, admitted only in respect of Question (ii). 3. Re. Ques....

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....al Board of Excise and Customs, the assessee inter alia repeated these contentions. The letter dealt with the provisions of the Finance Act and stated reasons why it was not liable to pay service tax. The assessee requested that the issue of taxability of the transactions for service tax be clarified. 5. As the clarification had not been received, the assessee, probably out of an abundant caution, filed an application for refund on 05.09.2008. The application is neither annexed with the papers nor produced before us but we will presume that it was stated to be under Section 11 B of the Central Excise Act. 6. The Assistant Commissioner by a notice dated 19.01.2009 called upon the assessee to show cause within 30 days as to why its applicat....

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....er receives such property for his personal use, then such activity would not be subjected to service tax, because this case would fall under the exclusion provided in the definition of 'residential complex'. However, in both these situations, if services of any person like contractor, designer or a similar service provider are received, then such a person would be liable to pay service tax." 8. Two things must be mentioned at this stage. Firstly, the Department never contended that the application was not maintainable under Section 11 B. Secondly, the finding that service tax is not payable by the assessee, is not challenged. These issues were not raised before the Tribunal. Nor were they raised before us as is evident from the questions ....

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....Act, 1991(40 of 1991), such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act: Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest." 10. The second proviso furnishes a complete answer in favour of the assessee. It states that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty, has been paid under protest. Even assuming that the application for refund of amounts paid in such circumstances, is to be made under Section 11 B(1), in the present ....