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TMI Blog2012 (7) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... neering Boys Hostel 3. It is also not in dispute that Service tax came to be paid in accordance with the Finance Act, 1994 for the services rendered for the above trust by constructing above buildings for the periods May 2005 to February 2006 and May 2006 to February 2007. During the month of March 2008, petitioner filed two refund applications dated 19-3-2008 which were received by the Department on 28-3-2008 contending that building construction which was done by them was to a non-profit organization and they were not liable to pay such tax in the light of the Circular No. 80/10/2004, dated 17-9-2004 and sought for refund of Service Tax paid. The Assistant Commissioner of Central Excise by order dated 19-11-2008 came to a conclusion that amount paid by them is not service tax, but it was in the nature of deposit with the Department. He also held that amounts collected erroneously have to be returned to the concerned person. But, however, rejected the refund claim on the ground that applications were filed beyond the period of limitation prescribed under Section 11B of Central Excise Act, 1944 (for short referred to as "Act"). 4. Being aggrieved by said order, petitioner preferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds that learned Single Judge erred in holding Section 11B as inapplicable. Therefore, he prays for the order of the learned Single Judge to be set aside by upholding the order of the Appellate authority. 8. He also contends that by virtue of Section 35B(1)(b) of the Act, there is statutory appeal to the Appellate Tribunal. Therefore, the Writ Petition itself was not maintainable and for this proposition, he relies upon the judgment of Hon'ble Supreme Court in the case of United Bank of India v. Satyawati Tondon [2010] 8 SCC 110 9. As against this, the learned Senior Counsel for Petitioner-assessee contends that as long as the amount paid by the respondent was an amount leviable and collected in accordance with the procedure, then Section 11B of the Central Excise Act would apply and if once the amount paid by the respondent is outside the purview of Section 11B of the Act, none of the provisions of Section 11B of the Act including time limit would apply and therefore amounts in question were paid under mistake and as such it cannot be construed as duty paid. In view of the same, he contends, Section 11B of the Act is not at all attracted to the facts of the present case. 10. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd accordingly sought for refund of the said amount. 14. While adjudicating the refund claim of petitioner, the adjudicating authority accepted the contention of petitioner and held the services rendered by petitioner were not exigible to service tax. As a matter of fact, the order of the Assistant Commissioner of Central Excise dated 19-11-2008 reads as follows : "Thus it is evident that if the building or the civil structure are for the use of organizations or institutions being established solely for the educational religious, charitable, health, sanitation or philanthropic purposes and not for the purpose of profit are not taxable, being non-commercial in nature. Since this clarification issued by the Board vide Circular No. 30/10/2004 dated 17-9-2004 is very clear on the issue, the construction services undertaken by M/s. KVR Construction is not taxable in nature and the assessee is not liable to pay any service tax and he has paid it under the misunderstanding of law. Since the amount collected by the Government is not at all payable by the assessee, this amount would resemble the amount collected without any authority of law. Hence, the amount paid by them is not service t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 226 is conceived to serve the ends of law and not to transgress them. At paragraph 113 of the said judgment, they classify the various refund claims into three groups or categories : (a) The levy is unconstitutional-outside the provisions of the (I) Act or not contemplated by the Act. (b) The levy is based on misconstruction or wrong or erroneous (II) Interpretation of the relevant provisions of the Act, Rules or Notifications: or by failure to follow the vital or fundamental provisions of the Act or by acting in violation of the fundamental principles of judicial procedure. (c) Mistake of law - the levy or imposition was (III) unconstitutional or illegal or not exigible in law (without jurisdiction) and, so found in a proceeding initiated not by the particular assessee, but in a proceeding initiated by some other assessee either by the High Court or the Supreme Court, and as soon as the assessee came to know of the judgment (within the period of limitation), he initiated act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ati Tondon (supra) .The judgment relied upon by the learned Counsel for the appellants in the case of Satyawati Tondon (supra) was pertaining to maintainability of writ petition under Article 226 of the Constitution. We have no hesitation to agree with the prepositions laid down in the above cited judgment that whenever an alternate and efficacious remedy is available to the party invoking Article 226 of the Constitution, he cannot take recourse to Article 226. Relevant paragraphs of the said judgment read as follows : "43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the document referred to in Section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person." 18. From the reading of the above Section, it refers to claim for refund of duty of excise only, it does not refer to any other amounts collected without authority of law. In the case on hand, admittedly, the amount sought for as refund was the amount paid under mistaken notion which even according to the department was not liable to be paid. 19. According to the appellant, the very fact that said amounts are paid as service tax under Finance Act, 1994 and also filing of an application in Form-R of the Central Excise Act would indicate that the applicant was intending to claim refund of the duty with reference to Section 11B, therefore, now it is not open to him to go back and say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under protest by the appellants. In that case after referring to Mafatlal Industries Ltd.'s case (supra), the lordships of Delhi High Court have held that in Mafatlal Industries Ltd.'s case (supra). Hon'ble Supreme Court was dealing with the case of refund of duty payable within the meaning of either the Central Excises and Salt Act, 1944 or the Customs Act, 1962 as the case may be, wherein they have held that all claims for refund ought to be filed only in accordance with the Customs Act. Therefore, it did not include the payment made under some other enactment, which for some reason had erroneously been made to the Customs authorities, f Even otherwise by referring to paragraph 137 of Mafatl Industries Ltd.'s case (supra) one has to see whether the amount claimed is unconstitutional and outside the provisions of Section 11B of the Act. 21. In the case of Nataraj & Venkat Associates (supra), this was pertaining to service tax wherein petitioner company was dealing in architectural services and paid service tax for the construction of the building carried on at Sri Lanka and contended it would not have attracted levy of service tax. In other words, there was an application for re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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