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2024 (8) TMI 1150

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.... paid by him under mistake. Otherwise also, it was the individual residential unit which were constructed by the appellant. The construction activity in that situation is not taxable. However, the said refund claim was proposed to be rejected vide Show Cause Notice No. 09/8121 dated 06.04.2009 alleging that the appellant had constructed residential flats at various sites in Jaipur developed by Rajasthan Housing Board and as such the activity is that of construction of complex services/construction of residential complex, which is taxable. The claim was also proposed to be rejected for being barred by the period of limitation. The proposal of said showcase notice was accepted vide Order-in-Original No. 51/2009 dated 08.12.2009. The appeal ag....

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.... We have heard Ms. Priyanka Goel, learned Advocate for the appellant and Shri Rohit Issar, learned Authorized Representative for the department. 4. Learned counsel for the appellant has submitted that the refund claim dated 04.01.2023 is wrongly held to be barred by limitation because the same is the continuation of previous refund claim dated 20.01.2009. The order confirming the claim to be barred by time is therefore liable to be set aside. Learned counsel further submitted that the activity of the appellant is exempted from the payment of service tax. The appellant paid the service tax under the mistake of law, hence the amount deposited is with the department without any authority to retain the same. Refund should have been sanctioned.....

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....decided pursuant to the directions of remand. But the fact still remain is that the fresh refund claim was filed five years later than the final order of this Tribunal. No doubt the refund claim file in January 2023 is in continuation of the refund claim initially filed in January 2009. Hence, cannot be held to have been barred by the period of time when the amount deposited for the period April 2007 to September 2008 was prayed to be refunded vide claim of January 2009. But from the final order dated 07.08.2017, it is clear that the order is silent about the refund claim. The Order-in-Appeal passed pursuant to the said final order has rejected the refund claim on the ground of time bar and that the services rendered by the appellant are ta....

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.... that present is the case of refund of the amount of duty deposited by the assessee alleging that it was deposited under the mistake of law. The issue of refund stands decided by Hon'ble Supreme Court in the case of ITC Vs CCE, Kolkata reported as 2019 (368) ELT 216 , in this judgement the Honourable Supreme Court has summarised as follows: * Assessment within its meaning includes 'self-assessment'; * A self-assessed bill of entry is an order of assessment Section 47 of Customs Act, 1962 ("the Act"); * A self-assessed bill of entry is an appealable order under Section 128 of the Act by 'any person' aggrieved; and * Refund under Section 27 of the Act is not maintainable till self-assessment is modified under Section 128 of the Act....