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M/s. Kalpataru Power Transmission Limited Versus Commissioner of Central Excise & S.T., Ahmedabad

2015 (11) TMI 911 - CESTAT AHMEDABAD

Refund of the service tax - Double payment of service tax - appellant have made first payment when there was no liability for them to pay - Period of limitation to be computed with the first payment or subsequent payment - Section 11B - Held that:- Appellant had paid the amount twice to the department. The first payment was made in 2007 when there was no liability for them to pay the said amount since they had not received retention/ withheld amount. They paid appropriate service tax in March/ A .....

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, once it is not payable in law there was no authority for the department to retain such amount. By any stretch of imagination, it will not amount to duty of excise to attract Section 11B. Therefore, it is outside the purview of Section 11B of the Act - Appellant is eligible for the refund of the amount deposited as it is double payment and it does not relate to tax, and also principle of unjust enrichment are not applicable in the instant case. Therefore, we hold that the appellant is eligi .....

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fund of the service tax paid in excess during the period October 2007 to March 2008. The appellant had made the payment of service tax in 2007-08under the category of Work Contract Services. The appellant submitted that the said service tax payment pertains to the gross amount received against the services provided including on amounts towards release of retention and withheld money. The appellant contended that while making payment on 05.11.2007, the amount of retention and withheld money was i .....

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payment made for the relevant periods in ST-3 returns. The appellant claimed that there was an excess payment of service tax to the tune of ₹ 18,17,946/- during this period. They filed the above said refund claim accordingly. A show cause notice for rejection of the refund claim was issued to the appellant as the refund claim was filed after expiry of one year time limit under Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. The adjudicating author .....

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07. The said payment was meant against the service tax liability on Retention/ Withheld amount of ₹ 1,49,15,220/-. However, this amount of ₹ 1,49,15,220/- was in fact, not received by them during the said year and therefore, in reality there was no service tax liability on them. The said amount was received by them in the months of March and April 2010 and they paid the appropriate service tax on the said amount in March/April 2010. He contends that therefore, the first payment was .....

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imited vs. CCE Jaipur 2003 (156) ELT 357 (Tri. Del.) (b) Indo-Nippon Chemicals Company Limited vs. UOI 2005 (185) ELT 19 (Guj.) (c) CCE, Ahmedabad vs. Shayona Enterprises 2008 (230) ELT 378 (Tri. Ahmd.) (d) CCE, Mumbai vs. Atul Industries 2004 (168) ELT 353 (Tri. Mumbai) (e) Asst. Collector of Central Excise, Calcutta vs. National Tobacco Co. of India Limited 1978 (2) ELT (J 416) (SC) (f) CCE, Kolkata vs. M.A. Financial Services Pvt. Limited 2006 (2) STR 350 (Tri. Kol.) (g) Karnik Maritime Pvt. .....

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e, limitation as prescribed under Section 11B of the Central Excise Act, 1944, made applicable to service tax by Section 83 of the Finance Act, 1994, would be invokable here. He also relied upon the decision of the Hon ble Delhi High Court in the case of Jumax Foam Pvt. Limited vs. UOI 2003 (157) ELT 252 (Del.). 4. On consideration of the arguments and case laws cited by both sides and perusal of the records, it is observed that there is no dispute that the appellant had paid the amount twice to .....

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riod, and was in order. He also held that, though the appellant is eligible for refund of the first payment but it was time barred under the provisions of Section 11B of the Central Excise Act, 1944, since the appellant filed refund application only on 04.05.2011. The Commissioner (Appeals) also took the same view and upheld the order of the adjudicating authority. It is clear from the facts that the appellant have made first payment when there was no liability for them to pay. The issue, whethe .....

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rpose of commencement of limitation under Clause (f) of Explanation (B) to Section 11B of the Act, even though reversal of Modvat credit was done in February/March 1995, since the mistake was discovered only in November 1995 when the Public Notice clarifying the legal position came to the knowledge of the petitioner, the period of limitation for the purpose of refund application would commence from November, 1995 i.e. on discovery of mutual mistake of the parties. In the circumstances, we hold t .....

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mbai Bench of the Tribunal, in the case of Karnik Meritime Pvt. Limited vs. CCE, Mumbai 2007 (6) STR 314 (Tri. Mumbai), has followed the decision of the Honble Gujarat High Court in the case of Indo-Nippon Chemicals Company Limited (supra), wherein the Tribunal held that the limitation commences from the date of discovery of error, as prescribed by Section 17 of the Limitation Act, 1963, the period of six months prescribed by Section 11B of Central Excise Act, 1944 is inapplicable in such case. .....

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rroneous collection by DOT and payment by the appellants. Therefore, provisions relating to refund of service tax, including those relating to unjust enrichment, cannot have any application to the return of the amount in question. It is further noted that provisions contained in Section 11D of the Central Excise Act have not been made applicable to service tax. Therefore, if any amounts are collected erroneously as representing service tax, which is not in force, there is no bar to the return of .....

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posit of duty, in which case the limitation provisions will not come into action. Learned DR s reliance on the Hon ble Supreme Court s decision in the case of M/s. Miles India Ltd. [1987 (30) E.L.T. 641 (S.C.)] and the Tribunal s decision in the case of M/s. Bajaj Foods Limited - [2007 (209) E.L.T. 191 (Tri.-Ahmd.)] laying down that the statutory authorities are bound by the limitation provided under the Act, are not relevant inasmuch as the deposit in question is not duty and the assessee is no .....

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uction [2012 (26) STR 195 (Karnataka)], in Paras 19, 22 and 23 held as under:- 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 that it was not refund of duty. No doubt in the present case, Form-R was use .....

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ce tax was payable by virtue of notification, they were not liable to pay, as there was exemption to pay such tax because of the nature of the institution for which they have made construction and rendered services. In other words, if the respondent had not paid those amounts, the authority could not have demanded the petitioner to make such payment. In other words, authority lacked authority to levy and collect such service tax. In case, the department were to demand such payments, petitioner c .....

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alidate the nature of payment nor the nature of transaction. In other words, mere payment of amount would not make it a service tax payable by them. When once there is lack of authority to demand service tax from the respondent company, the department lacks authority to levy and collect such amount. Therefore, it would go beyond their purview to collect such amount. When once there is lack of authority to collect such service tax by the appellant, it would not give them the authority to retain t .....

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