2023 (6) TMI 308 - CESTAT MUMBAI

Refund of Service Tax - time limitation - case of Revenue is that refund claim was made after the period of one year from the date of deposit therefore the same is not eligible for refund - Section 11B of the Central Excise Act, 1944 - HELD THAT:- The heading of Section 11B ibid is ‘claim for refund of duty and interest, if any, paid on such duty’. From the language of the heading of the said section it is clear that if there is any claim for refund of duty and interest on such duty then it has to be filed within the period prescribed therein. But the instant case is not about refund of duty as the duty has already been paid by the appellant on 5.10.2016, it is about the refund of the amount inadvertently paid by them again for the very same period i.e. July, 2016 to September, 2016 alongwith interest. It is not the case that the claim is fake or is not supported by any evidence. The department is admitting the double payment but denying the refund claim being beyond the period prescribed by Section 11B ibid.

The Hon’ble High Court of Judicature at Bombay in the matter of M/S PARIJAT CONSTRUCTION, M/S GIRIRAJ CONSTRUCTION VERSUS COMMISSIONER OF CENTRAL EXCISE [2017 (10) TMI 659 - BOMBAY HIGH COURT] has held that the limitation prescribed u/s. 11B ibid is not applicable to refund claims for Service tax paid under mistake of law. In the present case although there is no mistake of law but it has been paid by mistake as they have already discharged the duty and paid the same again with interest although they were not liable to pay.

The Hon’ble High Court of Judicature at Madras in the matter of M/S. 3E INFOTECH VERSUS CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, COMMISSIONER OF CENTRAL EXCISE (APPEALS-I) [2018 (7) TMI 276 - MADRAS HIGH COURT] has also taken a similar view and held that when service tax is paid by mistake, a claim for refund cannot be barred by limitation merely because the period of limitation has expired.

On similar lines, this Tribunal also in the matter of M/S SHRI JAVED AKHTAR VERSUS CCGST, MUMBAI WEST [2021 (11) TMI 281 - CESTAT MUMBAI] has held that retention of any amount by the department which was paid by the appellant therein without any liability or in excess of the liability violates Article 265 of the Constitution of India.

The appellant is entitled for refund of the amount of service tax paid by them totalling Rs. 95,978/- as the same has been deposited without any liability as the duty has already been discharged by the appellant - Appeal allowed - decided in favour of appellant.