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2017 (6) TMI 1141 - AT - Service TaxRefund claim - refund of the amount of service tax has been paid by mistake of law, which was otherwise not taxable - time limitation - whether the refund claim which is filed on ground of payment of Service Tax by mistake of law can be granted or not beyond one year under Section 11B of the Central Excise Act? - Held that - the issue is no longer res integra as decided in the case of MILES INDIA LIMITED Versus ASSISTANT COLLECTOR OF CUSTOMS 1984 (4) TMI 63 - SUPREME COURT OF INDIA , where it was held that the order of the Customs, Excise & Gold (Control) Appellate Tribunal suffers from no infirmity. If really the payment of the duty was under a mistake of law, the appellant may seek recourse to such alternative remedy as it may be advised - appeal dismissed - decided against appellant.
Issues:
1. Refund claim filed beyond one year under Section 11B of the Central Excise Act. 2. Applicability of limitation under Section 11B for refund claims based on mistake of law. 3. Rejection of refund claim on the ground of unjust enrichment. Analysis: 1. The appellant, registered with the Central Excise Department, provided "Commercial or Industrial Construction Service" to a school and charged Service Tax, which was paid voluntarily. The appellant filed a refund claim of &8377;2,61,440/- stating that the tax was paid by mistake of law and was not applicable to the services provided. The claim was rejected for being filed beyond the one-year limit specified in Section 11B of the Central Excise Act. 2. The appellant argued that tax paid under a mistake of law should not be subject to the one-year limitation under Section 11B. Citing a case law, the appellant contended that in such cases, the time limit should be three years from the acknowledgment of the mistake. However, the respondent relied on a judgment of the Hon'ble Supreme Court to support their position. 3. The Tribunal observed that the issue of refund claims based on payment of tax by mistake of law and the applicability of the limitation under Section 11B had been settled by the Supreme Court in a previous case. The Tribunal noted that the case law cited by the appellant was not applicable as the tax had been passed on in this instance. Additionally, the refund claim was rejected on the ground of unjust enrichment, which the appellant did not contest at any stage. In conclusion, the Tribunal found no merit in the appeal and dismissed it accordingly.
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