The main legal point established in the judgment is the interpretation of Section 11B and the proviso related to payments made under protest, highlighting the principle that amounts collected without authority of law fall beyond the imprint of expression or expropriation under pretence of authority of law.

S. RAVINDRA BHAT, J.

1. Following question of law arises for consideration:

“Did the Tribunal fall into error in holding that the refund claim made by the appellant was not maintainable?”

2. Admit.

3. Issue notice. Sh. Pramod Kumar Rai, Advocate accepts notice.

4. The facts of the case are that the appellant is a builder engaged in construction activity. The levy of Service Tax was imposed by an amendment in the Finance Act, 1994 with effect from 01.07.2010. However, prior to that, apparently, the Service Tax Department had issued a Circular dated 16.02.2006, the effect of which was to advise all construction companies to pay Service Tax. The appellant complied and started depositing amounts for the periods in question, i.e. from 2006 onwards. On 24.04.2007, the appellant protested, contending that the amounts paid by them were not covered by the levy and that they had to be refunded the said amounts. The said letter reads as follows:

“To,

The Superintendent,

Service Tax Division I

Delhi.

Sub: Payment of service tax in protest as per the Judgment dated 23.07.2007 in Revised Civil Mis. Writ Petition No.997 of 2006 decided by Allahabad High Court in case OF ASSOTECH REALITY PVT. LTD. VS. STATE OF U.P.

Sir,

We are paying Service Tax as a builder a lieu of decision 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 constructed, passes to the customer only on the execution of sale deeds and registration thereof. Until the time the sale deed is executed, the title and interest, including the ownership and possession in the construction made, remain with the company. The payment made by prospective purchasers, in instalments are aimed at facilitating purchase of the property by these probable purchasers so that they may not be required to pay whole of the price at a time. Form the above, it cannot be inferred that the company us making construction for and on behalf of the probable customers.

In view of the position explained above, you are requested to look into the matter and refund the service tax.

Thanking you,”

5. The appellant filed a refund claim on 26.02.2009, disclosing all the particulars, in the prescribed format, i.e. Form-R under Section 11B of the Central Excise Act, 1944. This claim was rejected in its entirety. The order-in-original observed as follows:

“ORDER

In view of the above discussions & findings, I reject the refund claim of Rs.72,21,075/- (including interest amount Rs.47,633/-) being time barred and inadmissible, and also reject the rest of the amount Rs.32,67,569/- being inadmissible out of total refund claim amount Rs.1,04,88,644/- filed on 26.02.2009 under Section 11B of the Central Excise Act, 1944, which is also made applicable in the Service Tax matters by virtue of Section 83 of the Finance Act, 1994.”

Sd/-

(SAHIL INAMDAR)

ASSISTANT 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 Tr