2018 (7) TMI 276 - MADRAS HIGH COURT

Refund claim - service tax paid under mistake of law - time limitation - applicability of Section 11B of the Central Excise Act - Whether the provisions of Section 11B of the Central Excise Act would be applicable to claim of refund made by an Assessee when the tax has been paid under mistake of law? - Held that:- Undisputably, there was no liability on the petitioner to pay service tax.

The Supreme Court of India, in the case of Union of India Vs. ITC Ltd. [1993 (7) TMI 75 - SUPREME COURT OF INDIA] has held that the Assessee's claim to refund would not be disallowed solely because it seemed barred by limitation.

The provisions of section 11B of the Central Excise Act, 1944 would, therefore, not be applicable to an application seeking refund thereof. The petitioner was therefore, wholly justified in making the application for refund under a mistake of law and not under section 11B of the Central Excise Act, 1944 - Since the provisions of section 11B of the Act are not applicable to the claim of refund made by the petitioner, the limitation prescribed under the said provision would also not be applicable and the general provisions under the Limitation Act, 1963 would be applicable.

The Application under Section 11B cannot be rejected on the ground that is bared by limitation, provided for under Section - The claim for return of money must be considered by the authorities - appeal allowed.