TaxTMI 
TaxTMI 
2017 (3) TMI 791
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....ina (hereinafter referred to as "DEC"). It is alleged that under the pressure/ignorance, the assessee-Appellants have deposited the amount of Rs. 93,13,142/- in the first case and Rs. 25,31,125/- in the second case in instalments towards Service Tax. After knowing the fact that, during the period under consideration, the 'Liaisoning Services' provided by them were not subject to Service Tax, a refund claim was filed in Form-R on 02.01.2008 along with the certificate of the Chartered Accountant. The refund claim was rejected by the lower authorities being time-barred as per Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. Being aggrieved, the assessee-Appellants have filed the present appeals. 3. With this background, we have heard Ms. Vibha Garg, learned counsel for the assessee-Appellants and Shri Ranjan Khanna, learned DR for the Department. 4. Ms. Vibha Garg, learned counsel, at the strength of the written submission, submits that during the period under consideration, the 'Liaisoning Service' provided by the assessee- Appellants were not subject to any Service Tax. Thus, the deposited amount is not towards a tax but it....
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.... of one year. 6. After hearing both sides at length and on perusal of record, it appears that during the period under consideration, the assessee-Appellants had provided the 'Liaisoning Services', which were not subject to Service Tax as per the Finance Act, 1994. The assessee-Appellants by mistake or in good faith or pressure from the Department had deposited the amounts towards Service Tax on different dates as per the details mentioned in the impugned orders. Soon after knowing the factual position, the assessee- Appellants have filed the refund claim along with the certificate issued by the Chartered Accountant in prescribed Form. The necessary details like registration certificate, ST-3 for concerned periods, copy of the challan, copy of Cenvat Credit register, copy of CA certificate were also enclosed. The claim of refund was rejected by the lower authorities in a mechanical way by following the statutory provisions prescribed under Section 11B of the Central Excise Act, 1944. 7. During the course of argument, the learned counsel for the assessee-Appellants has drawn our attention to the affidavit filed by the Director of the assessee-Appellants' Company wherein....
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.... 19-2-1972 was not proper as admittedly the respondent had approached the Assistant Collector Excise soon after coming to know of the judgment in Voltas case and the assessee was not guilty of any laches to claim refund." 10. In the instant case, it appears that no tax was due against the assessee-Appellants as the services provided by them were not subject to tax. At the relevant time, there was no authority/provision to collect the tax from the assessee- Appellants. Hence, this is an amount which was deposited in good faith. In the case of KVR Construction (supra), the Hon'ble Kerala High Court has observed that : "19. According to the appellant, the very fact that said amounts are paid as service tax under Finance Act, 1994 and also filing of an application in Form-R of the Central Excise Act would indicate that the applicant was intending to claim refund of the duty with reference to Section 11B, therefore, now it is not open to him to go back and say that it was not refund of duty. No doubt in the present case, Form-R was used by the applicant to claim refund. It is the very case of the petitioner that they were exempted from payment of such service tax by virtue of cir....
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....ax payable by them. Hence, the amount deposited by the assessee-Appellants by mistake/good faith cannot be termed as 'Tax'. 12. During the course of arguments, the learned counsel for the assessee-Appellants relied upon the ratio laid down in the case Kalpataru Power Transmission Ltd. (supra) wherein the Service Tax collected without any authority was declared outside the purview of Section 11B of the Act. The Hon'ble Delhi High Court in the case of Mera Baba Realty Associate (P) Ltd. (supra) has mentioned that in such cases, the limitation of one year prescribed under Section 11B(1) of the Central Excise Act, 1944 would not apply and hence is not applicable. 13. Further, it may be mentioned that the Tribunal in the case of Commissioner of Central Excise, Pune-III vs Shankar Ramchandra Auctioneers, 2010 (19) STR 222 (Tri-Mumbai), has observed that the amount collected without authority of law, the assessee is eligible for refund after analysing the issue as under : 'The learned DR submitted that refund claim is barred by limitation as it has been filed beyond the period of limitation and to support this contention, he placed reliance on Jumax Foam Pvt. Ltd. (sup....