TMI Blog2015 (11) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 eligible for the said refund. Therefore, the impugned orders cannot be sustained - Decided in favour of assessee. - Appeal No. : ST/10476/2013 - ORDER No. A/11587 / 2015 - Dated:- 30-10-2015 - Mr. P.M. Saleem, Member (Technical) For the Petitioner : Shri S.J. Vyas, Advocate For the Respondent : Shri S. Shukla, Authorised Representative ORDER Per : Mr. P.M. Saleem The facts of the case in the present appeal are that the appellant had filed a refund claim of ₹ 17,82,804/- on 04.5.2011, for the refund 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant immediately filed refund claim on 05.04.2011. He submits that since the first payment was not against any tax liability, the limitation under Section 11B of the Central Excise Act, 1944 will not be applicable. He submits that the amount is still pending with the department and they are entitled for refund of the same. He cited a number of case laws in his favour, as follows:- (a) Hexacon (I) Limited 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. Limited vs. CCE, Mumbai 2007 (6) STR 314 (Tri. Mumbai) (h) CCE, Jaipur vs. Jai Laxmi Finance Company 2006 (3) STR 25 (Tri. Del.) (i) CCE, Raipur vs. Indian Ispar Works (P) Limited 2006 (3) STR 161 (Tri. Del.) 3. Learned Authorised Repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that provisions of Section 11B of the Act are attracted to the refund application filed by the Petitioner. On the question of limitation, our conclusion is that since the claim is based on discovery of mistake, the period of limitation would not commence from the date of reversal of Modvat credit, but from the date when the mistake committed mutually of wrong reversal of credit by the parties was discovered in November, 1995. The refund claim has therefore to be held to be within time. (b) The Mumbai 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellant. The facts of the issue in the case law cited by the learned Authorised Representative for the Revenue are different and hence the ratio therein cannot be applied in the instant case. (f) Further, in a recent case, the Honble High Court of Karnataka in the case of CCE, Bangalore vs. KVR Construction [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 used by the applicant to claim refund. It is the very case of the petitioner that they were exempted from payment of such service tax by virtue of circular dated 17-9-2004 and this is not denied by the Department and it is not even denying the nature of construction/services rendered by the petitioner was exempted from to payment of Service Tax. What one has to see is whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the High Court. Their lordships of the Division Bench held that order of the Tribunal to allow the claim on the basis that amount paid by mistake cannot be termed as duty in the said case was justified and therefore applying the law laid down in the decision of Apex Court in the case of India Cements Ltd. v. Collector of Central Excise - 1989 (41) E.L.T. 358, dismissed the appeal. 23. Now we are faced with a similar situation where the claim of the respondent/assessee is on the ground that they have paid the amount by mistake and therefore they are entitled for the refund of the said amount. If we consider this payment as service tax and duty payable, automatically, Section 11B would be applicable. When once there was no compulsion or duty cast to pay this service tax, the amount of ₹ 1,23,96,948/- paid by petitioner under mistaken notion, would not be a duty or service tax payable in law. Therefore, 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. 5. In the li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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