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2022 (5) TMI 587 - CESTAT NEW DELHIRefund Claim of excess duty - time limitation - it is alleged that since there were Bills of Entry which were still provisionally assessed, the limitation of those bills have to be counted after the final assessment - HELD THAT:- There is no denial to the fact that Bills of Entry in both these appeals (8 BE in Appeals No. 52292/2021 and 5 BE in Appeals No. 50001/2022, the duty as was to be paid at the relevant time has been paid twice, once on 24.11.2014 and another on 25.11.2014. There is no denial to the fact that second payment was made because the payment made on 24.11.2014 was not reflected in ICES portal. The said admitted facts makes it clear that on the same number of BEs duty has been paid twice. As per Constitution of India Article 265, thereof duty cannot be collected beyond what is permissible by the law. This Bench in the case of DEXTEROUS PRODUCTS PVT LTD VERSUS C.C.E. & S.T., INDORE [2018 (12) TMI 381 - CESTAT NEW DELHI] that though of the decision of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] was in favour of the department, but the Hon’ble Apex Court in th said case has discussed in length the various situations of the seeking refund. While appreciating the same this Bench has already held that section 11B of Central Excise Act which is para materia to section 27 of the Customs Act (as has been involved in the present case) and the time bar therein is not applicable to the cases similar to the present one. The amount paid for the same duty but twice, one of the payment has to be refunded. Otherwise also in terms of section 17 of Limitation Act, whenever there is an application for a relief from the consequences of a mistake, the period of limitation would not begin to run until the plaintiff or applicant has discovered the mistake, or could with reasonable diligence, have discovered it. Since from this angle also, the bar of limitation is held to have wrongly applied against the impugned refund application - the duty was for Bills of Entry which were provisionally assessed, the fact remains is that duty which was to be paid at the relevant time has been paid twice, it is opined that remanding the matter back for reconsideration is not justified. The gist of Mafatlal Industries case also is that once it is established that more than what is payable under the statute has been paid by the tax-payer, the tax-payer automatically gets a right to get back the whole amount - The Authority without parity of law cannot be permitted to retain the amount because the appellant paying the double duty has committed a mistake. The appeals are allowed.
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