2017 (3) TMI 937

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....various incidental works. The same are taxable only w.e.f. 1.6.2007 as "mining service" under Section 65(105) (zzzy) of the Finance Act, 1994. The service tax paid erroneously under the taxable category of "Site Formation" prior to 1.6.2007 should be refunded to them. The lower authorities rejected the claim both on merit as well as on time bar. 2. Ld. Counsel for the appellant submitted that there is no tax liability on the appellant for the mining activities undertaken by them prior to 1.6.2007. Any amount paid erroneously under mistaken belief cannot be retained by the Government and the same has to be returned to the client. The provisions of Section 11 B with reference to time bar will not apply to such cases. 3. Ld.AR reiterated the....

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....onstruction of building, factory or civil structure are to be taxed even before 1.6.2007 under the category of "site formation & clearance service". The said circular also clarifies that coal cutting or mineral extraction and lifting them upto the pit head is integral part of the mining operations and are not to be taxed prior to 1.6.2007. In the present case, we note that there is an excavation of gypsum and loading of said gypsum in the mines. Other activities are with reference to the main intention of extraction of gypsum. Accordingly, we find that the lower authorities have not examined the scope of the service with statutory entries during the relevant period. Reference also to be made in this connection to the decision of the Tribuna....

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..... If the levy is unconstitutional meaning thereby it is null and void ab initio, then, the judgment in Mafatlal Industries (supra) would permit consideration of an application for refund filed belatedly. Mr. Desai submits that all that the judgment of the Nine Judge Bench holds is that unconstitutional and illegal levies cannot be upheld. In his submission, the predominant consideration while giving relief to the petitioners and applicants who seek refund of the amounts paid pursuant to such levies is that they should not be unjustly enriched. We are of the opinion that the Hon'ble Supreme Court may be considering the issue of validity of the provisions like Section 11B(1) introduced in the Central Excise Act, 1944, but the judgment cannot ....

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....circumstances we do not see how the Tribunal erred in applying the Rule of Limitation and reversing the order passed by the Commissioner (Appeals). The order of the Assistant Commissioner and that of the Tribunal in the given facts and circumstances cannot be said to be perverse. Both have rejected the claim as in their opinion it was stale and time barred. We do not see how such view can raise a substantial question of law. The view taken is imminently possible. We are, therefore, of the view that the Appeal fails and it is, accordingly, dismissed." 6. The Hon'ble High Court further examined, in detail, the decision of the Hon'ble Karnataka High Court in KVR Construction - 2012 (26) STR 195 (Karnataka ) and held the said decision was pec....