TMI Blog2023 (11) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities, as observed in the previous paragraphs, the Adjudicating Authority has failed to address this issue. No further Appeal was filed by the Department before the Commissioner (Appeals). The Commissioner (Appeals) has upheld the order passed by the Adjudicating Authority. The Revenue has not filed any Appeal by their grievance, if any about non-addressing of the unjust enrichment issue. This being so, when the Department itself has not addressed this issue at lower stages nor agitated by way of proper Appeal, such submissions made during the Final Hearing cannot be entertained by the Tribunal at this juncture. Therefore, the objection with regard to Unjust Enrichment cannot be sustained. Even otherwise, in the cited decision of the Tribunal in the case of M/S CREDIBLE ENGINEERING CONSTRUCTION PROJECTS LTD. VERSUS COMMISSIONER OF CENTRAL TAX, HYDERABAD GST [ 2022 (9) TMI 844 - CESTAT HYDERABAD] , it is held that Section 11B Provisions are not applicable which would also include the provisions of Unjust Enrichment under Section 11B also not being applicable in respect of such refund cases. Appeal allowed. - HON BLE MR. R. MURALIDHAR , MEMBER ( JUDICIAL ) And HON BL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his also proves that the Department has admitted that biscuits would fall under the category of Food Stuff . He submits that biscuits have been held to be food stuff by the Tribunal. Therefore, he submits that the lower authorities are in error in holding that the exemption is not applicable in their case. 4. In respect of the rejection of refund claim on account of time bar in terms of Section 11B, he submits that the Appellant has paid the Service Tax which is not required to be paid in the first place. In such a case, it has been held by the various Tribunals and Supreme Court that when Service Tax has been paid by mistake, the provision of Section 11B could not be applicable. He relies on the following case laws:- 1. Venkatraman Guhaprasad Vs. Commr. of GST C. Ex., Chennai, 2020 (42) G.S.T.L. 124 (Tri.-Chennai) 2. Commr. V. KVR Construction 2018 (14) G.S.T.L. J70 (S.C.) 3. Parijat Construction Vs. Commr. of Central Excise, Nashik, 2018 (359) E.L.T. 113 (Bom.) 4. 3E Infotech Vs. CESTAT, Chennai, 2018 (18) G.S.T.L. 410 (Mad.) 5. Commr. of C.Ex. (Appeals), Bangalore Vs. KVR Construction, 2012 (26) S.T.R. 195 (Kar.) 5. He submits that in all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no necessity for us to go into the aspect as to whether the biscuits can qualify as food stuff so as to be eligible for the exemption. 10. Even otherwise, on the same issue, in the case of Commr. of CGST, Ghaziabad Vs. Glaxo Smithkline Consumer Healthcare Ltd. Co. 2019 (28) G.S.T.L. 224 (Tri.-All.), the Tribunal has held as under;- The revenue s only contention is that biscuits cannot be held to be foodstuff. We really fail to appreciate the above contention of the revenue, inasmuch as, the biscuits in question are edible biscuits and not gold biscuits. The eatable biscuits would definitely fall under the category of foodstuff. Inasmuch as, the biscuits, as discussed by Commissioner (Appeals), is nothing but food, the size and timing for eating the same may change but never the less biscuits remains food item only. No reason stands given by the revenue as to why the biscuits has to be held as different from the category of food. The only contention of the Revenue is that foodstuff is relatable to only those items which can be further processed and the biscuits which are ready to use cannot be held to be foodstuff. We find no merits in the above stand of the Revenue. The foo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Construction reported in 2018 (14) G.S.T.L. J70 (S.C.). 12. Similarly, in the case of following cases, the co-ordinate Benches have held that refund claims filed on account of Service Tax paid by mistake, are not governed by the time limit specified under Section 11B. 1. Venkatraman Guhaprasad Vs. Commr. of GST C. Ex., Chennai, 2020 (42) G.S.T.L. 124 (Tri.-Chennai) 2. Commr. V. KVR Construction 2018 (14) G.S.T.L. J70 (S.C.) 3. Parijat Construction Vs. Commr. of Central Excise, Nashik, 2018 (359) E.L.T. 113 (Bom.) 4. 3E Infotech Vs. CESTAT, Chennai, 2018 (18) G.S.T.L. 410 (Mad.) 5. Commr. of C.Ex. (Appeals), Bangalore Vs. KVR Construction, 2012 (26) S.T.R. 195 (Kar.) 13. Based on the decision of Third Member Reference Bench, the CESTAT, Hyderabad vide its Final Order No. A/30082/2022 dated 05/09/2022 in the Credible Engg. Construction Vs. CCE, Hyderabad, has held as under:- 46. In view of the difference of opinion, the following questions arise for consideration by learned 3rd Member: (1) Whether the limitation prescribed under section 11B of the Central Excise Act will not be applicable as the tax was paid erroneously though eligible ..... X X X X Extracts X X X X X X X X Extracts X X X X
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