TMI Blog2017 (8) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... re of excise duty and consequently, the Education Cess and Secondary and Higher Secondary Education Cess computed thereon, also does not bear the character of a duty of excise, but is merely an amount paid under a mistake of law - appeal allowed - decided in favor of appellant. - Appeal Nos. E/76137, 76261, 76262, 76145/16 - Order No. FO/A/76443-76446/2017 - Dated:- 30-5-2017 - Shri P. K. Choudhary, Member ( Judicial ) Shri S. C. Jena, Consultant for the Appellant Shri S. Mukhopadhyay, Supdt.(AR) for the Revenue ORDER Per Shri P. K. Choudhary In these appeals, the appellants filed refund claims of the Education Cess and Higher Education Cess paid during the period April, 2004 to March, 2014. The adjudicating authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision is reproduced below:- 12. In the recent decision of the Division Bench of the Tribunal in the case of M/s.Monnet International Ltd. Another vs. CCE, New Delhi by Final Order No.52170-52171/2017 dated 08.03.2017 allowed the appeal on the identical situation. In that case, the assessee was providing liaisoning services to M/s.Dongfeng Electric Corpn., China during the period 01.06.2005 to 31.01.2007. They have deposited the amount of ₹ 93,13,142/- in the first case and ₹ 25,31,125/- in the second case in instalments towards Service Tax on 02.01.2008, they filed refund claim after knowing the fact that the liaisoning services were not subject to Service Tax. The refund claims were rejected by the lower authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of three years, after discovery of the mistake, for claiming such refund. 17. Thus, we are of the view that in the instant case, the amount deposited by the assessee-Appellants without any authority of law cannot be considered as Service Tax. As per Article 265 of the Constitution, no tax can be collected without any authority of law. At the relevant time, there was no authority of law to collect Service Tax on the activity carried out by the assessee-Appellants. Hence, Section 11B of the Central Excise Act, 1944 is not applicable. The amount was deposited in the year 2006-07 and the refund was filed on 02nd January, 2008. Hence, the claim has been made within the period of three years prescribed by Hon?ble Delhi High Court. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision observed that even assuming that the powers of the High Court under Article 226 of the Constitution are not appellate powers in the strict sense of the word and that they might be regarded as supervisory powers; it is open to the High Court to make a direction to the inferior Tribunal or substitute its order for that of the inferior Tribunal when such an order is of a consequential nature. In my considered view, the reliefs granted by the Hon ble High Court in the case of Joshi Technologies International (supra) on an identical situation would be binding on this Tribunal, when such an order of the Hon ble Court is of consequential nature. The ld.A.R. cited various case laws which are not applicable in the present facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
