D.N.PATEL,J. - (1.) This writ petition has been preferred for getting back the amount of Rs.2,52,762/ - (Rupees two lakhs fifty two thousand seven hundred and sixty two only), which was deposited by this petitioner despite there is no liability to make payment of any type of tax under any law much less as a service tax. Thus, the aforesaid amount was paid by mistake. Hence, it ought to have been given back to the petitioner.
(2.) Learned counsel appearing on behalf of the petitioner has submitted that the petitioner is providing services mainly viz "Erection, Commissioning and Installation Services". This is added in the Finance Act, 1994, with effect from 16.06.2005. Thus, for the aforesaid services, the Service Provider has to pay the service tax after 16.06.2005 and not for the period prior to that. A show cause notice was issued by the respondents on 20.11.2009 that petitioner has to deposit service tax for the year 2004 -05 and 2005 -06, but, this show cause notice has never been decided at all or adjudicated upon because for the period prior to 16.06.2005, the service tax was not leviable at all. Nonetheless, the aforesaid amount was deposited by this petitioner with the respondents under the mistake of fact and law both and hence, this petitioner is seeking return of his money.
(3.) Learned counsel appearing on behalf of the respondents has submitted that under Section 11B of the Central Excise Act, 1944 to be read with Section 83 of the Finance Act, 1994, now refund claim is time barred and hence, this petitioner is not entitled to refund and the petitioner has not paid the tax under the protest.;