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TMI Blog2020 (4) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of the Notification No.64/95-CE dated 16.03.1995. The appellant imported the goods and supplied the same to the Navy after mere inspection conducted by the Navy and availed exemption as per notification. During the period 2011 and 2012, the appellant made debit in their cenvat credit account as required under Rule 6 (3A) on the premise that common credit has been availed on these goods and that they have to reverse 6% of the value of the goods supplied to the Navy being exempted goods. Later, they realized that since no manufacturing activity has taken place on the goods supplied to Navy and not having availed any credit in respect of such goods, they are not liable to reverse an amount of 6% of the value of such clearances in their ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have the nature of duty since reversal is in an account maintained by the appellant. There is no actual payment to the Government. Therefore, the period of limitation as prescribed under Section 11B cannot be applied. Since they have reversed the amount in their account by mistake, the refund cannot be rejected on the ground of limitation. He relied upon the decision in the case of CCE & ST., Tirupati Vs S.N.J. Sugars and Products Ltd.- 2018 (362) E.L.T. 492 (Tri-Hyd.). He prayed that refund may be allowed. 3. Ld. A.R Shri S.Balakumar appeared and argued for the department. It is submitted by him that the application for refund can be made only under Section 11B of Central Excise Act, 1944; that therefore period of limitation prescribed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraph No. 5.4 : 5.4 Regarding contention of levy of Education Cesses, I would like to refer the language used in the Section 93 of the Finance (No. 2) Act, 2004, wherein it was categorically stated that "The Education Cess levied under Section 91, in the case of goods specified in the First Schedule to the Central Excise Tariff Act, 1985 being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Education Cess on excisable goods) at the rate of two per cent, calculated on the aggregate of all duties of excise (including special duty of excise or any other duty of excise but excluding Education Cess on excisable goods)". In view of the above, I opine that the payment of Education Cess and Secondary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Rs. 4,39,683/- cannot be barred by limitation, and ought to be refunded. 14. There is no doubt in our minds, that if the Revenue is allowed to keep the excess service tax paid, it would not be proper, and against the tenets of Article 265 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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