TMI Blog2017 (10) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Appellant Shri S.S.Chattopadhyay, Supdt. (AR) for the Revenue ORDER Per Shri P.K.Choudhary. The issue involved in these appeals is as to whether the refund claims filed by the appellants of the Higher Education Cess paid on the amount of Cess as leviable under the Beedi s Workers Welfare Cess Act, 1976 (56 of 1976) for the period 2004-2014 are time barred and hit by the principle of unjust enrichment in terms of section 11B of the Central Excise Act, 1944. The refund claims were filed on the ground that the Central Board of Excise Customs by Circular No.978/2/2014-CX dated 07.01.2014 had clarified that the Higher Education Cess and the Secondary and Higher Education Cess are not be collected on Cesses which are levied under the acts administered by Department/Ministries other than Ministry of Finance, Department of Revenue, but only collected by the Department of Revenue in terms of those acts. The said refund claims are as follows:- SR. NO. PARTY APPEAL NO. REFUND AMOUNT (RS.) PERIOD 1. M/s.SBW UDYOG LIMITED RAMCHANDRAPUR, PO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngaged in the manufacture of sale of biris classifiable under chapter 24 of the Central Excise Tariff Act, 1985. They submitted a refund claim on 07.01.2015 seeking refund of the Higher Education Cess and the Secondary and Higher Education Cess paid by them during the period from April, 2004 to March, 2014. They submitted the refund claim as per the Board s Circular No. 978/2/2014-CX dated 07.01.2014. (b) Show cause notices were issued proposing as to why the refund claim shall not be rejected on the ground that the major portion of the amount is time barred beyond 1(one) year from the relevant date, laid down in section 11B of the Central Excise Act, 1944. It is also hit by unjust enrichment. (c) The Assistant Commissioner of Central Excise Service Tax, Deoghar-II Division by order dated 14.07.2015 sanctioned the refund of ₹ 14,978/- under section 11B of the Act, 1944 for the period from 07.01.2014 to 20.01.2014 and ordered that the same to be credited to consumer welfare fund. The balance amount of refund was rejected as time barred. (d) In appeal, the ld.Commissioenr(Appeals) by order dated 05.01.2016 rejected the appeal filed by the appellant. It is seen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ld.A.R. in his written submission while distinguishing the decision of the Hon ble Gujarat High Court submitted as under:- 1.24 It is respectfully submitted that the Hon ble Supreme Court judgement in the Mafatlal case was not cited before the Hon le Gujarat High Court, and for this reason, it has come to a conclusion contrary to the Hon ble Supreme Court judgment. If the Hon ble Gujarat High Court s holding is accepted, then its natural consequences have also to be accepted. So, it has to be accepted that when excise duty is not payable, it would cease to be excise duty, and S. 11B would not be applicable for its refund. But this leads to a direct conflict with the mafatlal judgment, which says that in case of illegal levy, the only remedy is provided by Section 11B. Even otherwise, as has been noted hereinabove, some other High Courts, including the Hon ble Gujarat High Court itself in Bajaj Foods , have taken a different view. * * * * * * * * * * * * * * * 1.26 The appellants have relied upon the Hind Agro judgment where the Hon ble Delhi High Court held that when cess was erroneously paid on meat problems, refund claim could be filed within three years from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all. In the case of Mafatlal Industries Ltd. v. Union of India (supra), the question was with regard to the refund of Central Excise and Customs Duties. It was held that all claims except where levy is held to be unconstitutional, is to be preferred and adjudicated upon under Section 11B of the Central Excise Act, 1944 or under Section 27 of the Customs Act, 1962 and subject to claimant establishing that burden of duty has not been passed on to a third party. In such circumstances, it was held, no civil suit for refund of duty is maintainable. It also observes that writ jurisdiction of High Courts under Article 226 and of Supreme Court under Article 32 remains unaffected by the provisions of Section 11B of the Act. It was further held that concerned Court while exercising the jurisdiction under the said articles, will have due regard to the legislative intent manifested by the provisions of the Act and the writ petition would naturally be considered and disposed of in the light of the provisions of Section 11B of the Act. It has been held therein that power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it, as the power under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B cannot affect Section 72 of the Contract Act or the provisions of Limitation Act in such situations. My answer to the claims for refund broadly falling under the three groups of categories enumerated in paragraph 6 of this judgment is as follows : Where the levy is unconstitutional outside the category (I) provisions of the Act or not contemplated by the Act In such cases, the jurisdiction of the civil courts is not barred. The aggrieved party can invoke Section 72 of the Contract Act, file a suit or a petition under Article 226 of the Constitution and pray for appropriate relief inclusive of refund within the period of limitation provided by the appropriate law. (Dulabhai s case (supra) para 32 clauses (3) and (4). * * * * * * * * * * 24. The learned Counsel for the appellant has also contended that when the order of refund was rejected, the respondent could have approached this Court instead of filing the appeal choosing a wrong forum, could not be a deficit coming in the way to claim refund. 25. However, the petitioner has not approached the Tribunal after the order passed by 1st appellate authority and they have approached this Court. Therefore, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a), the appellants filed the refund claim of the excess Service Tax paid by them. In such a situation, the facts are not similar to this case. In the case of Hexacom (I) Ltd. v. Commissioner of Central Excise, Jaipur 2006 (3) S.T.R. 131 (Tribunal) = 2003 (156) E.L.T. 357 (Tri.-Del.), this Tribunal has held that if any amounts are collected erroneously as representing service tax, which is not in force, there is no bar to return of such amounts. Further, in the case of CCE, Jaipur-I v. Jai Laxmi Finance Co. 2006 (3) S.T.R. 25 (Tri.-Del.), this Tribunal had again held that the amount collected without authority of law, the assessee is eligible for refund. In this case also, prior to 1-5-2006, the provisions of Service Tax were not applicable on the respondents and the amount paid as Service Tax was not payable by them at all. In that situation, the provisions of Section 11B of Central Excise Act, 1944 extended to the Service Tax are not applicable to this case. Hence, the bar of limitation is not applicable to this case. 9. Now, I come to the third issue. I find that in this case the respondent has filed the refund claim for the amount, which they paid the Service Tax to the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded. 16. It may also be mentioned that in the case of Hind Agro Industries Limited (supra), we find that the Hon ble Delhi High Court has circumscribed the above view by prescribing the period of three years, after discovery of the mistake, for claiming such refund. 17. Thus, we are of the view that in the instant case, the amount deposited by the assessee-Appellants without any authority of law cannot be considered as Service Tax. As per Article 265 of the Constitution, no tax can be collected without any authority of law. At the relevant time, there was no authority of law to collect Service Tax on the activity carried out by the assessee-Appellants. Hence, Section 11B of the Central Excise Act, 1944 is not applicable. The amount was deposited in the year 2006-07 and the refund was filed on 02nd January, 2008. Hence, the claim has been made within the period of three years prescribed by Hon ble Delhi High Court. Therefore, we are of the view that the assessee-Appellants are entitled to get the refund and the same is not hit by the limitation prescribed under Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. 18. Moreover, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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