TMI Blog2019 (4) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... barred by limitation, in view of Section 11B of Central Excise Act. Principles of natural justice - Held that:- Admittedly the appellant herein is the service recipient and paid, under a mistake, a duty under reverse charge mechanism. Normally, it is the service provider, who has to pay the service tax, as a recipient of services, when it is the obligation of the appellant to discharge the service tax, the question of recovering the same from service provider does not arise. As such, there is no question of the impugned refund to be hit by the issue of unjust enrichment. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.ST/52463/2018-ST [SM], ST/52469/2018-ST [SM] - FINAL ORDER NO.50335-50336/2019 - Dated:- 19-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the appellant that the appellant was receiving goods transport services for carriage of the agricultural produce i.e. the spices and had paid the tax thereupon under reverse charge mechanism. However, the GTA services for carriage of agricultural produce got exempted vide the Notification No. 3/2013. Realizing that in view of said Notification, appellant was not liable to deposit the tax even under reverse charge mechanism that the appellant rightly filed the refund. The same has been rejected applying section 11B of Central Excise Act. It is submitted that the said Section is not applicable to the given circumstances where the duty actually was not leviable. These findings of the original adjudicating authority have been upheld vide t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im to be barred by time. Order, accordingly is prayed to be upheld. Appeals are prayed to be dismissed. 6. After hearing both the parties and perusing the entire record, I am of the opinion as follows: - 6.1 The only issue which remains alive for consideration in this case is as to whether the provisions of Section 11B of Central Excise Act would be applicable to the claim of refund made by an assessee when the tax has been paid under mistake of law. 6.2 To adjudicate, I observe that the appellant herein is the recipient of the goods transport agency services that too for the carriage of spices that is the agricultural produce. The same has nowhere been disputed by the Department. Notification No. 3/2013 dated 01.03.2013 has also b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid under mistake, since the assessee was not guilty of any laches, he is entitled to claim the refund. The Hon'ble High court of Gujarat in the case of Oil and Natural Gas Corporation Ltd. vs. Union of India reported in 2017 (354) ELT 577 (Guj.) has held 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 imposed under the provisions of the OID Act assumes the character of central excise duty. The finding recorded by the adjudicating authority that the Oil Cess is in the nature of exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals) has even gone through the extent of holding that the refund in the present case is hit by the principle of unjust enrichment. Admittedly the appellant herein is the service recipient and paid, under a mistake, a duty under reverse charge mechanism. Normally, it is the service provider, who has to pay the service tax, as a recipient of services, when it is the obligation of the appellant to discharge the service tax, the question of recovering the same from service provider does not arise. As such, I am of the opinion that there is no question of the impugned refund to be hit by the issue of unjust enrichment. I draw my support from the decision of this Bench in the case of Redicura Pharmaceuticals Pvt. Ltd. vs. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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