2022 (2) TMI 1170 - HC - Central Excise

Refund of duty paid - deposit was made out of mistake of fact - refund rejected on the ground of time limitation u/s 11B of the Central Excise Act - HELD THAT - The Hon ble Karnataka High Court in the case of COMMISSIONER OF CENTRAL EXCISE (APPEALS) BANGALORE VERSUS KVR CONSTRUCTION 2012 (7) TMI 22 - KARNATAKA HIGH COURT came to the conclusion that section 11B of the Central Excise Act was not applicable to a refund application filed by the petitioner based on mistake of law. The Hon ble Karnataka High Court fairly held that section 35B(1)(b) was inapplicable. Learned counsel for the petitioner further relied upon the challenge to the said order of the Hon ble Karnataka High Court before the Hon ble Supreme Court in case of Commissioner V. KVR Construction 2011 (7) TMI 1334 - SC ORDER . The Hon ble Supreme Court dismissed the challenge to the order passed by the Karnataka High Court referred hereinabove and came to hold that the Karnataka High Court had held that the provision of limitation under section 11B of the Central Excise Act 1944 would not apply for refund of service tax paid by mistake on exempted services even though the assessee had filed claim under Form-R which shows that they had treated such payment as duty but later on claimed it as not a duty. Mere payment of an amount by the assessee and acceptance by the Department would not regularize such an amount as duty if it was not actually payable and paid by mistake. It was further held that writ petition against the order of Commissioner (Appeals) rejecting refund of Service tax paid on exempted services as time-barred is maintainable and cannot be rejected on the ground of availability of alternate appellate remedy particularly when payment of Service Tax exempted services held not be Tax/duty so as to attract the provisions of Section 11B of Central Excise Act 1944 and also the provision of Section 35B of the said Act relating to appeal to Appellate Tribunal is not applicable. The issue framed hereinabove is answered in the positive in favour of the petitioner and the appellate authority i.e. the Commissioner of Central Tax (Appeals) is directed to take up the appeal and dispose of the same within a period of 2(two) months from the date of communication of the copy of this order to the authorities concerned - petition disposed off.

Summary

1. ISSUES PRESENTED and CONSIDERED

The sole legal issue considered and pressed before the Court was:

"Whether the assessing authority/appellate authority can dismiss a claim of refund under Section 11B of the Central Excise Act, 1944 on the ground of limitation, when the deposit was made out of mistake of fact?"

Although initially four issues were admitted for consideration, the petitioner chose to press only this issue, effectively narrowing the scope of the appeal to the applicability of the limitation period under Section 11B in cases of mistaken payment of service tax.

2. ISSUE-WISE DETAILED ANALYSIS

Issue: Applicability of limitation under Section 11B of the Central Excise Act to refund claims arising from mistaken payment of service tax.

Relevant Legal Framework and Precedents:

Section 11B of the Central Excise Act, 1944, prescribes the limitation period for filing refund claims of duty or service tax. It generally mandates that a refund claim must be filed within one year from the relevant date.

Section 65B(44) of the Finance Act, 1994 defines "service" for the purpose of service tax. The petitioner contended that no service, as defined, was provided to the Board of Control for Cricket in India (BCCI), and thus the tax paid was by mistake of law.

The petitioner relied heavily on the Karnataka High Court judgment in Commissioner of Central Excise (Appeals), Bangalore Vs. KVR Construction, which held that Section 11B limitation provisions do not apply to refund claims based on mistake of law or fact in payment of service tax on exempted services. This position was upheld by the Supreme Court in Commissioner V. KVR Construction, which dismissed the challenge to the Karnataka High Court ruling.

Court's Interpretation and Reasoning:

The Court noted that mere payment of an amount by the assessee and its acceptance by the Department does not convert such payment into a valid duty if it was paid mistakenly. The limitation period under Section 11B is not applicable to refund claims arising from such mistaken payments.

The Court observed that the petitioner had not provided any taxable service to BCCI and had received fewer grants/donations, indicating that the tax payment was indeed a mistake of fact or law.

The Court further noted that the Commissioner of Central Tax (Appeals) had kept the appeal pending by transferring it to the 'Call Book' pending the outcome of a similar case before the Supreme Court (Vidarbha Cricket Association case). However, the Court found no justifiable ground for such delay given the binding precedent from the Supreme Court in KVR Construction.

Key Evidence and Findings:

The petitioner's factual assertion that no taxable service was provided was accepted. The legal findings in KVR Construction, which were binding, supported the petitioner's claim that limitation under Section 11B does not apply to mistaken payments.

Application of Law to Facts:

Applying the binding Supreme Court precedent, the Court held that the refund claim filed by the petitioner was not barred by limitation under Section 11B because the payment was made by mistake of law/fact. Therefore, the assessing and appellate authorities erred in rejecting the refund claim on limitation grounds.

Treatment of Competing Arguments:

The Department argued for dismissal of the refund claim on limitation grounds under Section 11B. The Court rejected this argument based on the binding precedent and the principle that mistaken payments do not constitute valid duty payments to which limitation applies.

The Department's reliance on the pendency of the Vidarbha Cricket Association case was held to be irrelevant in light of the Supreme Court's decision in KVR Construction.

Conclusions:

The Court answered the issue in the affirmative in favor of the petitioner, holding that limitation under Section 11B does not apply to refund claims arising from mistaken payment of service tax.

The appellate authority was directed to take up and dispose of the appeal within two months, and to withdraw the case from the 'Call Book' to avoid undue delay.

3. SIGNIFICANT HOLDINGS

The Court preserved the crucial legal reasoning from the Supreme Court in Commissioner V. KVR Construction, stating:

"Mere payment of an amount by the assessee and acceptance by the Department would not regularize such an amount as duty if it was not actually payable and paid by mistake."

Further, the Court emphasized that:

"The provision of limitation under section 11B of the Central Excise Act, 1944 would not apply for refund of service tax paid by mistake on exempted services even though the assessee had filed claim under Form-R which shows that they had treated such payment as duty but later on claimed it as not a duty."

Core principles established include:

• Limitation under Section 11B does not apply to refund claims based on mistake of fact or law in payment of service tax.
• Payment made by mistake does not constitute valid duty, and thus refund claims are maintainable beyond the one-year limitation period.
• Writ petitions challenging rejection of refund claims on limitation grounds are maintainable, especially when the claim concerns mistaken payment of exempted service tax.
• Pending similar cases before higher courts do not justify delaying disposal of appeals where binding precedent exists.

Final determinations:

• The refund claim filed by the petitioner is not barred by limitation under Section 11B.
• The appellate authority is directed to dispose of the appeal expeditiously within two months.
• The case must be removed from the 'Call Book' to ensure timely adjudication.