TMI Blog2020 (1) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant. - Excise Appeal No.78558 of 2018 - FINAL ORDER NO. 75043/2020 - Dated:- 9-1-2020 - HON BLE SHRI P.K. CHOUDHARY, MEMBER(JUDICIAL) S/Shri Saurabh Bagaria, Indranil Banerjee, Advocates And Abhishek Kr. Harnathka, Chartered Accountant for the Appellant (s) Shri S.S.Chattopadhyay, Authorized Representative for the Respondent (s) ORDER P.K.CHOUDHARY : Briefly stated the facts of the case are that the appellant is engaged in the business of construction of residential flats, commercial and industrial construction services etc. The appellant entered into a transaction for sale of Flat No.6B having super-built-up area of 2320 sq. ft. with two car parking spaces standing at Holding No.13, Road No.4, Contractors Area, Bistupur, Jamshedpur in favour of one Mrs. Abha Singh and Mr.Bhupesh Kumar. The relevant certificate of Completion/Occupancy Certificate dated 06.04.2015 (page 55 of Appeal Paperbook) had been issued much prior to the aforesaid transaction of sale of property having taken place. As per Agreement for sale dated 08.03.2016 (pages 23 to 39 of Appeal Paperbook), the total sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant not paid those amounts, the authority could not have demanded such payment from the Appellant. In other words, the Department lacked authority to levy and collect such Service Tax. In case, the Department was to demand such payments, the Appellant could have challenged it as unconstitutional and without authority of law. It is submitted that once the said amount is not payable in law and the Department has no authority to retain such an amount, the said amount will not be duty of excise or as in the instant case service tax to attract Section 11B of the 1994 Act. Hence, the instant case is outside the purview of Section 11B of the 1994 Act and there is no question of time-bar. 3. Learned Advocate submits that the disputed refund claim fell outside the purview of Section 11B of the Central Excise Act, 1944 and there was no question of any time bar. The Commissioner(Appeals) never disputed the non-leviabiilty of Service Tax on the transaction in question. The appellant s sale of the subject property was an outright transfer of title in immovable property in favour of Mrs.Abha Singh and Mr.Bhupesh Kumar. Indeed, no service had been rendered by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Industries Limited Vs. Union of India reported in 1997 (89) ELT 247 extensively considered the nuances of Section 11B of the Act. While summarizing the propositions, the Hon ble Court at para 99(ii) held as follows:- (ii) Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception : where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be re-opened on the basis of a decision on another person s case; this is the ratio of the opinion of Hidayatullah, CJ. in Tilokchand Motichand and we respectfully agree with it. Such a claim is maintainable both by virtue of the declaration contained in Article 265 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainable to assail the levy or order which is illegal, void or unauthorised or without jurisdiction and/or claim refund, in cases covered by propositions No. (1), (3) (4) and (5) in Dulabhai s case, as explained hereinabove, as one passed outside the Act and ultra vires. Such action will be governed by the general law and the procedure and period of limitation provided by the specific statute will have no application. [Collector of Central Excise, Chandigarh v. M/s. Doaba Co-operative Sugar Mills Ltd., Jalandhar [1988 (37) E.L.T. 478 (SC) = 1988 Supp. SCC 683); Escorts Ltd. v. Union of India Ors. [1994 Supp. (3) SCC 86)] Rule 11 before and after amendment, or Section 11B cannot affect Section 72 of the Contract Act or the provisions of Limitation Act in such situations. My answer to the claims for refund broadly falling under the three groups or categories enumerated in Paragraph 5 of this judgment is as follows : where the levy is unconstitutional - Outside the Category (I) provisions of the Act or not contemplated by the Act :- In such cases, the jurisdiction of the civil courts is not barred. The aggrieved party can invoke Section 72 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al dated 16.11.2017 was passed by the Assistant Commissioner, Jamshedpur. The impugned Order-in- Appeal dated 11.06.2018 was passed by the Commissioner(Appeals), Ranchi. In the said facts and circumstances, the jurisdictional High Court, is the High Court of Jharkhand. The impugned issue is squarely covered in the case of J.B. Engineers (supra) of the Hon ble Jharkhand High Court. It is trite law that the Tribunal ought to follow the jurisdictional High Court as a matter of judicial discipline and law relating to precedents. The following cases are relied upon in support of the said propositions:- i) CCE Vs. Kashmir Conductors [1997 (96) ELT 257 (T-LB) (Para 10.2, 11)] ii) J.K.Tyre Inds. Ltd. v. ACCE [2016 (340) elt 193 (Tri.-LB) (Para 19,20)] iii) CC CE ST Vs. Andhra Sugar Ltd. [2015 (319) ELT 297 (AP)(Para 3)] iv) CC(Prev) Vs. Ratan Kumar Saha [2005 (189) ELT 11 (Cal)(Para 4)] 16. The judgement of the Tribunal in the case of Veer Overseas Limited Vs. CCE reported in 2008 (15) GSTL 59 (T-LB) relied upon by the respondents is distinguishable, both on facts and in law. The facts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that relief in respect of payments made beyond the period of three years may not be granted from the date of filing of the petition, taking into consideration the date when the mistake came to be known to the party concerned. Just as an assessee cannot be permitted to evade payment of rightful tax, the authority which recovers tax without any authority of law cannot be permitted to retain the amount, merely because the tax payer was not aware at that time that the recovery being made was without any authority of law. In such cases, there is an obligation on the part of the authority to refund the excess tax recovered to the party, subject of course to the statutory provisions dealing with the refund. 9. We are, therefore, of the opinion that the High Court, while disposing of the writ petition under Article 226 of the Constitution of India, was perfectly justified in holding that the bar of limitation which had been put against the respondent by the Collector of Central Excise (Appeals) to deny them the refund for the period September 1, 1970 to May 28,1971, and June 1, 1971 to February 19, 1972 was not proper as admittedly the respondent had approached the Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of levy of Education Cess and Secondary and Higher Secondary Education Cess, two other conditions precedent, are required to be satisfied, viz., (i) that the duty of excise should be levied by the Central Government in the Ministry of Finance (Department of Revenue); and (ii) the duty of excise should be collected by the Central Government in the Ministry of Finance (Department of Revenue). In the present case, since the machinery provisions of the Central Excise Act, 1944 and the rules framed thereunder have been incorporated in the OID Act, the second condition precedent is satisfied, viz. that the cess is collected by the Central Government in the Ministry of Finance (Department of Revenue); however, the first condition with regard to levy of such duty of excise by the Central Government in the Ministry of Finance (Department of Revenue) is not satisfied inasmuch as the Oil Cess under the OID Act is levied by the Ministry of Petroleum and Natural Gas. In the aforesaid premises, the requirements of Section 93 of the Finance Act, 2004 and Section 138 of the Finance Act, 2007 are not satisfied in the present case, and consequently, the said provisions have no applicabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed period of limitation. Moreover, since the very retention of the Education Cess and Secondary and Higher Secondary Education Cess by the respondents is without authority of law, in the light of the decision of this court in Swastik Sanitarywares Ltd. v. Union of India (supra), the question of applying the limitation prescribed under Section 11B of the CE Act would not arise. Even in case where any amount is paid by way of self assessment, in the event any amount has been paid by mistake or through ignorance, it is always open to the assessee to bring it to the notice of the authority concerned and claim refund of the amount wrongly paid. The authority concerned is also duty bound to refund such amount as retention of such amount would be hit by Article 265 of the Constitution of India which mandates that no tax shall be levied or collected except by authority of law. Since the Education Cess and Secondary and Higher Secondary Education Cess collected from the petitioner is not backed by any authority of law, in view of the provisions of Article 265 of the Constitution, the respondents have no authority to retain the same. If the adjudicating au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly allow the present appeals and quash and set aside the impugned order, insofar as it is against the appellant in both appeals. We fully allow refund of ₹ 8,99,9621/- preferred by the appellant. We direct that the respondent shall refund the amount of ₹ 8,99,962/- to the appellant within a period of three months. There shall be no order as to costs. 12. Further, the claim of the respondent in refusing to return the amount would go against the mandate of Article 265 of the Constitution of India, which provides that no tax shall be levied or collected except by authority of law. 13. On an analysis of the precedents cited above, we are of the opinion, that when service tax is paid by mistake a claim for refund cannot be barred by limitation, merely because the period of limitation under Section 11B had expired. Such a position would be contrary to the law laid down by the Hon ble Apex Court, and therefore we have no hesitation in holding that the claim of the Assessee for a sum of ₹ 4,39,683/- cannot be barred by limitation, and ought to be refunded. 14. There is no doubt in our minds, that if the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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