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TMI Blog2025 (2) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... d to have been submitted to the Original Authority and First Appellate Authority (if any), is seen filed along with the Appeal Memorandum. It is not required to examine the matter independently and disturb the findings of the Lower Authorities. The ends of justice would be met by remanding the matter to the Original Authority and facilitating the appellant from furnishing the requisite contract copies so that the issue of classification can be examined in its proper perspective and a decision arrived at. Rejection of a part of the claim as being barred by limitation - HELD THAT:- The appellant has stated that the excess amounts were paid by mistake and could not be termed as duty/ service tax and hence, the same would be outside the purview of Section 11B of the Act. It is the appellants opinion that the department has no authority to retain such amount and therefore they are entitled for the refund of the said amount. Revenue has contested this plea citing the judgment in Mafatlal Industries Ltd. [1996 (12) TMI 50 - SUPREME COURT] - Hence as per the law declared by the Hon'ble Supreme Court the right which accrues in favour of the appellant to claim the refund is under section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following customers based on work orders given by them S. No. Name of Customer Scope of work Total area constructed (Sq. Ft.) Contract value (Rs.) Date of contract 1. Rishabh Info Park Pvt. Ltd. Construction of IT Park 2,10,000 5 crores 2.4.2005 2. R.R. Info Park Pvt. Ltd. Construction of IT Park 25 crores 20.2.2006 3. RR Techno Mechanicals Pvt. Ltd. Factory shed with AC roofing 3100 14 lakhs 20.10.2005 4. RR Techno Mechanicals Pvt. Ltd. Office building with RC roofing 1600 12 lakhs 20.10.2005 5. Jayam Consultants Pvt. Ltd. Factory shed with gal valium sheet roof 30,000 33 lakhs 2.6.2008 6. Jayam Consultants Pvt. Ltd. Office building with RCC roofing 1000 12 lakhs 2.6.2008 The said work orders clearly showed that the scope of work was inclusive of materials & labor. In other words, the contracts were rendered on works contract basis. Except the "Jayam Consultants" work order the construction service pertaining to other work orders had commenced in April 2005, Oct 2005 and Feb 2006. The Ld. Advocate stated that the appellant had produced before the Original Authority as well as Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Hind Agro Industries Ltd.v. Commissioner of Customs 2007-TIOL-811-HC-Del.Cus. 7. UOI VS ITC Ltd 1993 Supp. (4) SCC 326) The Ld. Advocate prayed that the appeal may be allowed and the impugned order set aside. 3.2 The Ld. AR reiterated the points given in the impugned order. He stated that the appellant had not furnished contract copies in spite of repeated reminders, as recorder at para 12.4 of the OIO, but are now claiming to have provided the same, which is not permissible. He further stated that all claims for refund are subject to the time limit of Section 11B of the Central Excise Act including that paid by mistake as per the judgment of the Hon'ble Supreme Court in Mafatlal Industries Ltd. v. Union of India [(1997) 5 SCC 536]. He hence prayed that the appeal may be rejected. 4. I have heard the parties to the dispute and have gone through the appeal papers. I find that the dispute involves two issues; a) the classification of the service rendered, and; b) part rejection of the claim as being time barred. 5. As regards the classification of the service, I find that the appellant having claimed the refund, was duty bound to back his claim with the best evidence av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utory provision ("law") is itself challenged by an assessee for an unconstitutional levy as it is violative of some provision of the Constitution, and succeeds then the claim for refund arises outside the provisions of the Act. [See para 17 of judgment] ii) where the tax is collected by the authorities under a statute by misconstruction or wrong interpretation of the provisions of the Act, Rules or Notifications or by an erroneous determination of the relevant facts, i.e., an illegal levy. In this class of cases, the claim for refund arises under the provisions of the Act. In other words these are situations contemplated by and provided for by the Act and the Rules. [See para 18 of judgment] However, all refund claims except that of an unconstitutional levy must be filed and adjudicated under the refund provisions of the Central Excises and Salt Act 1944 or the Customs Act 1962, as the case may be. Hence as per the law declared by the Hon'ble Supreme Court the right which accrues in favour of the appellant to claim the refund is under section 11B of the Central Excise Act 1944 and therefore, the limitation prescribed under the section would apply. Further as per the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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