2009 (10) TMI 3

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....upees Two Lakh Fourteen Thousand Eight Hundred and Eight) during the period from 04/3/06 to 04/9/06. Thereafter no service tax was paid by them. On 23/8/07, the Central Board of Excise and Customs issued a master Circular No. 96/7/2007-ST. On the basis of this Circular, the respondent filed a refund application on 13/9/07 claiming that they are only builders and not engaged in providing service of construction of residential complex to their clients. The refund application was rejected by the Assistant Commissioner vide order-in-original dated 15/7/08 on the merits as well as on time bar. On appeal, the Commissioner (Appeals), however, vide the impugned order-in-appeal No. 12 (ST)/RPR-I/08 dated 29/5/08 allowed the appeal holding that no se....

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....rted in 1997 (89) E.L.T. 247 (S.C.) and in the case of Asstt. Collector of Customs and Others vs. Anam Electrical Mfg. Co. and Others reported in 1997 (90) E.L.T. 260 (S.C.), has held that even if the authorities under the Act have collected tax by misinterpreting or misapplying the law, for refund of the amount, a claim has necessarily to be filed under the provisions of the Act within the limitation period prescribed therein. Shri Sansar Chand also drew my attention to the findings in the Assistant Commissioner's order that prior to the issue of master Circular dated 23/8/07, the Ministry had issued a letter No. 332/35/06 dated 1/8/06 giving the same clarification and since the appellant after 4/9/06 have not paid any tax, it is clear tha....

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....activity does not attract any service tax, has been discussed by the Commissioner (Appeals) and it has been observed by the Commissioner (Appeals) that the Ministry's letter dated 1/8/06 cannot be treated as public notice or circular available to all the assessees and that only on issue of the Board's Circular dated 23/8/07 that the respondent became aware that their activity does not attract any service tax and only then they surrender their registration and applied for refund. 3. I have carefully considered the submissions from both the sides and perused the records. 3.1 There is no dispute about the fact that the respondent had, on their own, obtained service tax registration for payment of service tax on their activity by treating....