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TMI Blog2018 (7) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... lant did not have a liability to pay Service Tax. After realising this error, the appellant on 30.06.2016 made a representation to the Assistant Commissioner of Central Excise (service tax) Tirunelveli Division, for the refund of this tax paid by him, which was in excess of his liability. 4. While dealing with the representation of the Assessee, Assistant Commissioner, issued a show cause notice as to why the claim of refund of the Assessee as far as the sum of Rs. 4,39,683/- was concerned not be disallowed. The Assistant Commissioner was of the view that under Section 11B of the Central Excise Act, the application for refund must be made within a period of one year from the relevant date. The Assistant Commissioner was of the view that the claim of refund by the Assessee insofar as it related to Rs. 4,39,683/- was barred by limitation, as the application for refund was made after one year from the relevant date. 5. In the refund order, the Assistant Commissioner allowed the refund of Rs. 5,32,772/- and disallowed the refund claim of Rs. 4,39,683/- on the ground that it was barred by limitation. 6. Aggrieved by this order, the Assessee filed an appeal to the Commissioner of Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne 1, 1971 to February 19, 1972 was not proper as admittedly the respondent had approached the Assistant Collector Excise soon after coming to know of the judgment in Voltas case and the assessee was not guilty of any laches to claim refund. 9. In the above cited case, the Supreme Court stated that the Assessee's claim to refund would not be disallowed solely because it seemed barred by limitation. Since the Assessee in that case made the claim for refund shortly after learning about their entitlement for the same, it would not be just to hold that such claim is hit by laches. 10. The High Court of Gujarat in Oil and Natural Gas Corporation Ltd., Vs. Union of India, reported in 2017 (354) E.L.T. 577 (Guj.) relied on another judgment of the Gujarat High Court in Joshi Technologies International, INC-India Projects Vs. Union of India and quoted the relevant paragraph, which reads as under:- "Merely because the provisions of the Central Excise Act, 1944 and the rules framed thereunder for collection and refund viz., the machinery provisions have been incorporated in the OID Act for collection and refund of the cess levied thereunder, it cannot be inferred that the Oil Cess imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the present case. The petitioner, therefore, cannot be said to have been liable to pay Education Cess and Secondary and Higher Secondary Education Cess under the above provisions. In the facts of the present case, the refund is claimed on the ground that the amount was paid under a mistake of law and such claim being outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. The petitioner was, therefore, justified in filing the present petition before this court against the order passed by the adjudicating authority rejecting its claim for refund of the amount paid under a mistake. Since Oil Cess is not a duty of excise, the amount paid by the petitioner by way of Education Cess and Secondary and Higher Secondary Education Cess, cannot in any manner be said to be a duty of excise inasmuch as what was paid by the petitioner was not a duty of excise calculated on the aggregate of all the duties of excise as envisaged under the provisions of section 93 of the Finance Act, 2004 and section 138 of the Finance Act, 2007. Thus, the amount paid by the petitioner would not take the character of Education Cess and Secondary and H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material produced by the petitioner, he could have called upon the petitioner to produce further documentary evidence in support of its claim that it had not passed on the incidence of duty to the purchaser. However, without affording a reasonable opportunity to the petitioner to produce documentary evidence in support of its claim that there was no unjust enrichment, the adjudicating authority was not justified in holding that there was unjust enrichment. Therefore, the finding that the petitioner's claim is hit by unjust enrichment cannot be legally sustained." 11. A similar view has been taken by the Bombay High Court in the case of Parijat Construction Vs. Commissioner Excise, Nashik, reported in 2018(359) ELT 113 (Bom), where the Bombay High Court has held as under:- 4. We are of the view that the issue as to whether limitation prescribed under Section 11B of the said Act applies to a refund claimed in respect of service tax paid under a mistake of law is no longer res integra. The two decisions of the Division Bench of this Court in Hindustan Cocoa (supra) and Commissioner of Central Excise, Nagpur v. M/s. SGR Infratech Ltd. (supra) are squarely applicable to the fact ..... 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