TMI Blog2021 (10) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the Revenue that no material evidence was placed to show that in the account statement of invoice/bill, etc, it was shown that delayed payment charges was indicated separately, is wholly misconceived since the Commissioner of Service Tax (Appeals) has categorically held that the rejection of the claim by the adjudicating authority without considering the certification issued by the chartered accountant amounts to technical/procedural lapses which should not be a ground for rejection of refund. The period of limitation would not be applicable in the present case - Appeal allowed - decided in favor of appellant. - C.E.A. No. 20/2018 - - - Dated:- 16-9-2021 - HONBLE MRS.JUSTICE S. SUJATHA AND HON'BLE MR. JUSTICE RAVI V. HOSMANI APPELLANT (BY SRI ASHOK A. DESHPANDE, ADV. A/W SRI GANESH S., ADV.) RESPONDENT (BY SRI AMIT DESHPANDE, ADV.) JUDGMENT S. SUJATHA, J., This appeal is filed by the assessee under Section 35G of Central Excise Act, 1944 (hereinafter referred to as The Act, 1944') read with Section 83 of Finance Act, 1994, assailing the order dated 13.10.2017 passed by the Customs, Excise and Service Tax Appellate Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od April 2009 to September 2010, this appeal is preferred by the assessee. 7. Learned counsel for the assessee, placing reliance on the judgment of a co-ordinate Bench of this Court in the case of Commissioner of Central Excise (Appeals), Bengaluru, v. KVR Construction [2012 (26) STR 195 (Kar.)], submitted that service tax paid on LPC was on a mistaken notion which was not liable to be paid. S.11B of the Act, 1944 relates to claims for refund of duty. He submitted that 'duty' means the duty payable under Section 3 of the said Act. As per the Central Excise Rules, 2002. The amount of service tax paid on LPC, not being the duty payable under Section 3 of the Act, 1944, S.11B of the Act, 1944 has no application to the present case. Therefore, he contended that the Central Government cannot withhold the amount paid as service tax without the authority of law in violation of Article 265 of the Constitution of India. The authorities having refunded the service tax paid under the mistaken notion for the period October 2010 to March 2011, ought to have refunded the same for the period in consideration also. 8. Referring to the judgment of the Hon'ble Apex Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record. 12. The crux of the controversy mainly relates to the applicability of S.11B of the Act, 1944 to a refund claim made by the assessee relating to service tax paid on a mistaken notion on the LPC. 5.11B of the Act of 1944 reads as under: 11B. Claim for refund of duty: (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty had not been passed on by him to any other person. In terms of Rule 3 (e) of the Central Excise Rules, 'duty' means the duty paid under Section 3 of the Act of 1944. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex Court in the case of Assistant Collector v. Anam Elec. Manufacturing Co. (supra) has held that the claim of refund was hit by limitation. In the said judgment, the Hon'ble Apex Court has laid down the guidelines for disposal of appeals and special leave petitions coming within the ambit of S.11l3 of the Act,1944. In view of the decision in the case of KVR Constructions (supra), that Section 11-B is not applicable to the identical fact situation and the same being confirmed by the Hon'ble Apex Court dismissing the appeal filed by the Revenue, the judgment in the case of Assistant Collector v. Anam Elec. Manufacturing Co. (supra) would be distinguishable, as the refund claimed is not with respect to illegal levy collected, but service tax paid by the assessee voluntarily through self-assessment under a mistaken notion. 16. The judgment relied upon by the learned counsel for the Revenue in the case of MDP Infra (India) (supra) will also not come to the assistance of the Revenue to deny refund as the Hon'ble Apex Court was dealing with the exemption notification, exemption granted to the payment of service tax on construction services provided to Government auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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