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TMI Blog2009 (10) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... lected by the authorities under the Act by misinterpreting or misapplying any of the rules, regulations or notifications or erroneous determination of relevant facts, the same may be called an illegal levy, however, for the refund of such amount, though illegally collected, a claim has to be necessarily preferred under and in accordance with the respective enactments before the authorities prescribed thereunder and within the period of limitation prescribed therein – refund beyond one year rejected. - 596 of 2008 (SM) - 1238 of 2009 SM (BR) - Dated:- 7-10-2009 - Shri Rakesh Kumar, Member (Technical) Shri Sansar Chand, Authorized Representative (SDR), for the appellant. Shri Alok Barthwal, Advocate, for the respondent. [Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present appeal has been filed by the Revenue. 2. Heard both the sides. 2.1 Shri Sansar Chand, the learned Departmental Representative pleaded that while the service tax had been paid during the period from 04/3/06 to 04/9/06, the refund claim has been filed after expiry of period of one year on 13/9/07 and hence the same is time barred, that the service tax whose refund is sought was not been paid under protest and hence the limitation period would be applicable, that even if the respondent are treated as covered by the Board's Circular dated 23/8/07 and their activity is treated as non-taxable, even then for claiming the refund, the limitation period prescribed under Section 11B would apply and in this regard he relies upon Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Delhi High Court's judgment in the case of Indo-Nippon Chemicals Co. Ltd. vs. U.O.I. (supra), which has been relied upon by the Commissioner (Appeals) in the impugned order-in-appeal, that the Tribunal in the case of Hexacom (I) Ltd. vs. CCE, Jaipur reported in 2003 (156) E.L.T. 357 (Tri.-Del.) has held that if any amounts are collected erroneously as representing service tax, which is not chargeable, there is no bar to return such amount and the provisions relating to refund of service tax including those relating to unjust enrichment cannot have any application to the return of the amount, in question, that same view was taken by a Single Member Bench of Tribunal in the case of CCE, Raipur vs. Indian Ispat Works (P) Ltd. re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of service tax. Hon'ble Delhi High Court in the case of Jumax Foam Pvt. Ltd. vs. U.O.I. (supra) relying upon Hon'ble Supreme Court's judgment in the case of Mafatlal Industries Ltd. vs. U.O.I. (supra) and Assistant Collector of Customs and Others vs. Anam Electrical Manufacturing Co. and Others (supra), has held that even if some tax is collected by the authorities under the Act by misinterpreting or misapplying any of the rules, regulations or notifications or erroneous determination of relevant facts, the same may be called an illegal levy, however, for the refund of such amount, though illegally collected, a claim has to be necessarily preferred under and in accordance with the respective enactments before the authorities prescribed ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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