TMI Blog2017 (11) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical) Sh. Rachit Jain, Advocate for the assessee Sh. Sanjay Jain, AR for the Revenue ORDERE Per: (Dr.) Satish Chandra The present appeal is filed against the order-in-appeal No.06/BPL/2012 dated 23.01.2012 passed by the Commissioner of Central Excise (Appeals), Bhopal. The period of dispute is 01.07.2007 to 31.12.2008. 2. Brief facts of the case are that the appellant was awarded certain projects by Municipal Corporations of Bhopal and Jabalpur for execution of works relating to supplying, laying, jointing, testing and commissioning of sewers in different areas of Bhopal and Jabalpur. The appellant raised running bills on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Himatsingka Seide Ltd. v. Commissioner of Customs, Bangalore [2005 (191) E.L.T. 885 (Tri.-Bang.)]. The relevant portion of the said decision is reproduced below:- 6. We have gone through the rival contentions. This is a case where de-bonded goods have sold. There is nothing wrong in the presumption of the Revenue that the duty burden is included in the sales price. But the error committed by the Revenue is in presuming that duty collected in excess of what is payable had been passed on to the buyers. Whenever there is a composite price inclusive of all duties, the meaning is that the price includes only the duty payable. We cannot presume that the excess duty paid by mistake is passed on to the buyer. The Hon ble Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted on the ground of unjust enrichment. The Revenue relied on the work contract which indicates that the rates are inclusive of all taxes. The Tribunal interpreted the terms inclusive of all duties and held that the provision that the rates are inclusive of all duties would not lead to the necessary presumptions or conclusion that excess duty should be held to have been covered or provided for. The price here was a lump sum amount and the usual condition that the rates are inclusive of all duties and taxes is only with a view to avoid any possibility of the supplier raising any demand at a later stage on the ground that certain duties are to be paid. The expression rates are inclusive of all duties and taxes have to be understood as applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 11B of the Central Excise Act, 1944. The Tribunal allowed the appeals filed by the assessee. It has been held as under:- 14. After considering the various case laws on the subject which are discussed in the above paragraphs, we come to the conclusion that Section 11B generally governs the claim for refund of duty and interest paid on such duty. The Section has been made applicable for service tax also. In the case of KVR Constructions (supra) , the Hon'ble Kerala High Court has laid down yardsticks to decide those cases where Section 11B may not be applicable in service tax cases. The Hon'ble High Court has held that, if there is no authority to collect service tax by the department, it would not give them the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that the assessee-Appellants are entitled to get the refund and the same is not hit by the limitation prescribed under Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. 18. Moreover, it may be mentioned that the Department should not take advantage of the ignorance of the assessee-Appellants as per the ratio laid down in the case of Parekh Brothers Vs CIT, 150 ITR 105 Kerala; and CIT Vs Maha Laxmi Sugar Mills, 160 ITR 920 SC. 19. In the instant case, we are of the view that it is not a case of refund of tax, but return of deposit for which limitation (Section 11B of the Act) is not applicable. Hence, we set aside the impugned orders and direct the jurisdictional Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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