1. In this appeal filed by the assessee, the short question to be considered is whether their claim of refund of Rs. 1,20,218/- which was filed on 28.01.2009 is hit by limitation or not. The appellant has waived personal hearing.

2. The appellant had paid service tax on renting of various immovable properties during the material period. An amount of Rs. 1,20,218/- was paid on 16.01.2008 towards service tax on renting of an immovable property for boarding and lodging for the period from September to December 2007. Refund of this amount was claimed on 28.01.2009 on the ground that such tax was not liable to be paid by virtue of Explanation 1 (d) to Section 65 (105) (zzzz) of the Finance Act 1994. The original authority rejected this claim, against which the claimant preferred an appeal to the Commissioner (Appeals). The appellate authority held that the refund claim was time-barred. Against this decision the appellant has contended that as the service tax was paid by mistake of law Section 11B of the Central Excise Act is not applicable to the refund claim. The appellant has claimed support from certain decisions noted below:

(1)  Hexacom (I) Ltd. v. CCE 2003 (156) E.L.T. 357 (Tri.-Delhi.)

(2)  CCE v. Indian Ispat Works (P) Ltd. [2007] 7 STT 319 (NewDelhi-Cestat)

(3)  CCE v. M.A. Financial Services (P.) Ltd. [Order No. A/772/Kol./2005, dated 25-10-2005]

(4)  Hind Agro Industries Ltd. v. Commissioner of Customs 2008 (221) E.L.T. 336 (Delhi)

3.1 Per contra, the learned Superintendent (AR) submits that all refund claims under the Finance Act 1994, except any claim arising out of statutory provisions having been declared unconstitutional, must confirm to the requirement of section 11B of the Central Excise Act read with section 83 of the Finance Act 1994. In the instant case, refund of service tax paid by mistake of law should have been claimed within the period of limitation prescribed under section 11B. In this connection, reliance is placed on the following decisions:

(1)  Kerala State Electricity Board v. Asstt. Collector of Central Excise. 2002 (144) E.L.T. 302 (Ker.).

(2)  Mysore Leasing & Finance Ltd. v. CCE, C&ST [2008 16 STT 479 (Bang. - CESTAT).

3.2 The learned Superintendent (AR) has endeavoured to distinguish the cases relied on by the appellant. It is submitted that, in the case of Hexacom (I) Ltd., (supra) the issue considered by the Tribunal was not one of limitation. In the case of Indian Ispat Works (P) Ltd., the cause of action for refund arose on account of the retrospective amendment of an exemption notification by section 160 of the Finance Act 2003. In the case of Hind Agro Industries Ltd. (supra), refund was claimed of an amount which was not recognized as a payment made under the Customs Act and accordingly section 27 of that Act was held inapplicable. The learned Superintendent (AR) has therefore argued that the case law cited by the appellant cannot be applied to the instant case.

4.1 I have given careful consideration to the submissions. As per Section 65 (105) (zzzz) of the Finance Act 1994,"taxable service" means any service provided or to be provided to any person, by any person in relation to renting of immovable property for use in the course or furtherance to business or commerce. Explanation 1 of' this definition reads as follows:

For the purpose of this sub-clause, "immovable property" includes

But does not include -

(d) Building used solely for residential purposes and buildings used for the purposes of accommodation, including hotels, hostels, boarding houses, holiday accommodation, tents, camping facilities"

The service tax in question was paid, admittedly, on renting of immovable property for a hotel, which property was expressly excluded from the definition of the term "immovable property" used in the definition of "taxable service". Therefore it is not in dispute that the appellant was not liable to pay service tax amounting to Rs. 1,20,218/-. Nevertheless they pa