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TMI Blog2016 (9) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the levy itself came into force with effect from 01.07.2010 per se, amounts collected without authority of law fall beyond the imprint of expression or expropriation under pretence of authority of law. Therefore, the fundamental question of the appellant or any other assessee seeking recourse being restricted by the period of limitation under the statute authorising levy and its recovery should not arise. Furthermore, even if that reasoning were to be perused, the fact remains that the protest was lodged within reasonable time of the appellant becoming aware that the amounts were not recoverable as Service Tax. That is sufficient to attract proviso to Section 11B(1). - Decided in favour of appellant X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of K. Reheja Development Corporation case. The Allahabad High Court has turned down the said Judgment in Revised Civil Misc. Writ Petition No.997 of 2006 decided on 23.03.2007 in case of Assotech Reality Pvt. Ltd. Vs. State of U.P. Accordingly being a builder, we are not liable to pay the service tax. However, we are depositing the service tax in protest with the condition that in case it is decided in favour of builder, the same would be refunded to us. It is further submitted that, it is not applicable to the case at hand in as much as this decision was rendered on the facts of its own case, in our case, the company has not undertaken any construction work for and on behalf of proposed customer and the title, in the property so co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... STANT COMMISSIONER" 6. The primary adjudicating authority was of the opinion that the application was time-barred. He took into account the fact that the assessee had voluntarily obtained registration and deposited amounts without protest and much later claimed that such amounts were not leviable. The order-in-original further observes that in the circumstances, there is no question of any amount being refunded. The first appellate authority took note of previous orders of Central Excise and Service Tax Appellate Tribunal (CESTAT), notably in M/s. Rubberwood India Pvt. Ltd. v. Commissioner of Customs 2006 (206) ELT 536 and other decisions to say that the levy should be calculated from the date when the refund claim was originally filed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anations inserted in the Section 65(105)(zzq) and (zzzh) w.e.f. 01.07.2010 and clarifications given by CBEC vide Letter D.O.F. No.334/03/2010-TRU dated 1-7-2010, it is amply clear that if an agreement is entered into or any payment is received, for sale of complex or apartment in residential complex, service tax will be leviable on such transaction since the builder provides the construction service w.e.f. 01.07.2010 only in terms of principle laid down in the above mentioned judgments that Service Tax levied by virtue of new entry and explanation would be applicable prospectively only. In view of the above, I hold that the activities undertaken by the appellants were chargeable to Service Tax w.e.f. 01.07.2010 by virtue of Explanation inse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the colour of a lawful expression could not be retained by the Service Tax authorities on the ground that the time for claiming the refund had expired. Learned counsel relied upon the second proviso to Section 11B and stated that if a protest is lodged, then the time period of one year provided for by Section 11 would be inapplicable. 8. Learned counsel for the respondent, on the other hand, contended that the impugned order of the CESTAT should not be interfered with since it had merely corrected the first appellate authority's order. That the appellant had made a refund claim in the appropriate form for the first time in 2009 is not denied. That it had also deposited and continued to deposit service tax amounts despite its under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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