TaxTMI 
TaxTMI 
2017 (10) TMI 448
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....out certain area of immovable property to Employees State Insurance Corporation, Hubli (hereinafter referred to as ESIC) on rental basis during the period August 2010 to August, 2012 and discharged the service tax liability thereon. Having been told by ESIC that they are not required to pay the service tax, appellant filed refund claim with the lower authorities on 24.01.2013 on the ground that service tax paid by them for the amount received from ESIC, service tax is not leviable as the said premises is let out to government organisation. Show Cause Notice was issued to appellant for rejection of such refund claim. Appellant contested the show cause notice on merits. The adjudicating authority after going through the entire case, came to t....
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.... 3 (S.C)], wherein the Apex Court has stated that duty collected without authority of law, bar of limitation as provided for in Section 11B of Central Excises & Salt Act, 1944 not applicable when assessee not guilty of any laches in claiming refund . He would also gainfully relied upon the decision of Hon'ble High Court of Karnataka in the case of CCE (Appeals) Bangalore v. KVR Construction [2012(26)S.T.R 195(Kar.)] for the proposition that Revenue has no reason to retain the amount deposited by the appellant as it is not the tax liability. He would also rely on the decision of Hon'ble High Court of Jharkhand in the case of G B Engineers v. Union of India [2016-TIOL-1098-HC-Jhankhand-ST] and Swastik Sanitarywares Ltd. v. Union of India [201....
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....ire proposition of law put forth before him. When an assessee is not required to pay any tax duty and has paid it under mistake but subsequently claims it as mistake of law, the only thing has to be given for consideration is whether the duty paid is correct or otherwise. In the case in hand, it has to be noted that appellat s plea that they are not liable to pay service tax on the rent received from ESIC, is not disputed by Revenue anywhere in the records. On the contrary, adjudicating authority should have recorded that appellant is not required to pay service tax liability under the rent of immovable property services. 8. On this factual matter, I find that Ld. Counsel is correct in referring to the decision of Apex Court in the case ....
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....ant to claim refund. It is the very case of the petitioner that they were exempted from payment of such service tax by virtue of circular date 17.9.2004 and this is not denied by the Department and it is not even denying the nature of construction/services rendered by the petitioner was exempted from to payment of service tax. What one has to see is whether the amount paid by petitioner under mistaken notion was payable by the petitioner. Though under Finance Act, 1994 such service tax was payable by virtue of notification, they were not iable to pay, as there was exemption to pay such tax because of the nature of the institution for which they have made construction and rendered services. In other words, if the respondent had not paid thos....
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....para 23, wherein the ratio has been laid down clearly holding that refund is to be sanctioned and as this Bench is functioning under the jurisdiction of Hon'ble High Court of Karnataka, this ratio is squarely applicable on me and I have to follow the same. The same is the ratio which has been laid down by Hon'ble High Courts of Jharkhand and Gujarat in the case of G B Engineers v. Union of India and Swastik Sanitarywares Limited respectively (supra). 10. I find that the Principal Bench of this Tribunal headed by Hon'ble President in the case of Monnet International Limited, Monnet Projects India Pvt. Ltd v. CCE, New Delhi [2017-TIOL-1023-CESTAT-DEL.)] considered very same issue. The facts on the case is in para 2 and it is seen that the ....
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....'ble Delhi High Court has circumscribed the above view by prescribing the period of three years, after discovery of the mistake, for claiming such refund. Thus, we are of the view that in the instant case, the amount deposited by the assessee-Appellants without any authority of law cannot be considered as Service Tax. As per Article 265 of the Constitution, no tax can be collected without any authority of law. At the relevant time, there was no authority of law to collect Service Tax on the activity carried out by the assessee-Appellants. Hence, Section 11B of the Central Excise Act, 1944 is not applicable. The amount was deposited in the year 2006-07 and the refund was filed on 2nd January 2008. Hence, the claim has been made within the....