1. This is the appeal filed by the revenue.

2. Heard the learned J.D.R. and perused the records.

3. The case was posted for hearing on 12-9-2008 but M/s. Beharay and Rathi Constructions, Pune, the respondents herein, sought adjournment vide their letter dated 11-9-2008. Accordingly, the case was adjourned on that date. The case was again posted for hearing on 7-11-2008 and 5-12-2008 but the respondents did not appear for hearing in spite of notice. Hence the case is taken up for disposal on the basis of the evidence available on record.

4. The issue involved in the case is that the respondents are the recipients of ‘Goods Transport Agency’ services. They are liable to pay service tax on the said services in terms of section 68(2) of Chapter V of the Finance Act, 1994 read with rule 2(1)(d)(v) of the Service Tax Rules, 1994. They had paid service tax in respect of the said service for the period from 1-1-2005 to 31-3-2005 by availing abatement of 25 per cent instead of 75 per cent of the gross amount under Notification No. 32/2004-ST, dated 3-12-2004 and Notification No. 1/2006-ST, dated 1-3-2006. Short payment had resulted in excess payment of service tax.

5. Therefore, they had filed a refund claim for Rs. 83,860 with the Deputy Commissioner on 4-7-2006. The said amount of service tax of Rs. 83,860 was paid by the respondents on 6-4-2005. It appeared that the refund claim was hit by time bar in terms of section 11B of the Central Excise Act, 1944, as the refund claim was filed beyond one year from the date of payment of service tax. Therefore, a show-cause notice dated 13-9-2006 was issued to the respondents, vide which the said refund claim was sought to be rejected on the aspect of time bar.

6. The said show-cause notice was adjudicated by the Deputy Commissioner, vide Order-in-Original dated 6-7-2007, by which the said refund claim was rejected on the aspect of time bar.

7. Being aggrieved by the said Order-in-Original, the respondents herein filed an appeal before the Commissioner (Appeals), who vide Order-in- Appeal dated 26-3-2008 has allowed their appeal. Hence this appeal by the revenue.

8. The Commissioner (Appeals) has relied upon the following case laws :—

"(i)Order dated 10-12-1987 issued by Hon’ble High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 257 of 1980 in the case of Agra Beverages Corpn. (P.) Ltd. v. Union of India 1988 (34) ELT 465 (All.);

(ii)Order dated 28-4-1986 issued by the Hon’ble High Court at Calcutta in CO. No. 4117 (W) of 1984 in the case of Dulichand Shreelal v. Collector of Excise 1987 (32) ELT 388 (Cal.);

(iii)Order dated 13-1-2004 in respect of Writ Petition No. 332 of 1996 in the case of Heavy Engineering Corporation Ltd. v. Union of India 2004 (167) ELT 396 (Cal.);

(iv)Order dated 18-12-1987 issued by the Supreme Court, in Civil Appeal Nos. 3023-3029 of 1979, in the case of Salonah Tea Co. Ltd. v. Superintendent of Taxes, Nowgong 1988 (33) ELT 249 (SC);

(v)Final Order No. 194/2005, dated 3-2-2005 issued by CESTAT, SZB, Chennai, in the case of SRF Ltd. v. Commissioner of Customs 2005 (184) ELT 293 (Trib. - Chennai)."

9. It has been held by the Commissioner (Appeals) that it could be seen from the above-mentioned case laws that when tax was collected without the authority of law, the same cannot be retained by the Government; and that when the tax was collected by mistake of law, the provisions of section 11B of the Central Excise Act, 1944 are inapplicable. He has also held that in terms of the case laws mentioned at Sr. Nos. (v) & (iii) above, when tax was collected by the State without any authority, the principle of unjust enrichment is not applicable.

10. I find that the Commissioner (Appeals) is not correct in holding that the provisions of section 11B of the Central Excise Act, 1944, are inapplicable to the impugned refund claim, inasmuch as the provisions of section 11B of the Central Excise Act, 1944 have been made applicable to service tax matters vide section 83 of th