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TMI Blog2021 (10) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... ise and Service Tax Appellate Tribunal, South Zonal Bench-II, Bengaluru (hereinafter referred to as the Tribunal'). 2. The appeal was admitted by this Court on 09.11.2018 to consider the following substantial question of law: "Whether the Tribunal committed an error in misreading Section 1 1B of the Central Excise Act to the facts and circumstances of the case? 3. The appellant-assessee is a private limited company registered under the provisions of Companies Act, 1956. The assessee is a holder of service tax registration and is engaged in rendering taxable services under the category of 'Stock broker' and 'Banking and other Financial Services'. The assessee was collecting Late Payment Charges, (LPC) from the custome ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period October 2010 to March 2011, after processing, the refund application was allowed. Being aggrieved by the order of the Tribunal in rejecting the claim for the period 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision in the case of Commissioner of C.Ex. .v. KVR Construction (supra), has held that there was no dispute that the appellant therein was prevented from seeking refund within the period of limitation. The plea taken was that service tax having been paid mistakenly on construction services which were exempted during the relevant period was misconceived. The said judgment has been confirmed by the Hon'ble Apex Court. 10. Inviting the attention of the Court to the Circular issued by Central Board of Excise and Customsdated 03.08.2011, learned counsel submitted that in terms of paragraph 3 therein, service tax is chargeable on the taxable value which shall be the 'gross amount' charged by the service provider. Therefore, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Section 3 of the Act of 1944 reads thus: "3. Duty specified in the Fourth Schedule to be levied: (1) There shall be levied and collected in such manner as may be prescribed a duty of excise to be called the Central Value Added Tax (CENVAT) on all excisable goods produced or manufactured in special economic zones) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be paid by the assessee, it would not give the Department the authority to retain the amount paid by the assessee. Therefore, mere nomenclature would not be an embargo on the right of the petitioner to demand refund of payment made under a mistaken notion. This judgment has been confirmed by the Hon'ble Apex Court dismissing the appeal filed by the Revenue. Having regard to the facts and circumstances of the case, this judgment is squarely applicable to the case on hand. 15. The Tribunal placing reliance on the judgment of the Hon'ble Apex 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 lai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Therefore, placing reliance on the finding of the Tribunal in the case of CST, Delhi .v. Convergys India P td. [2009 (16) S.T.R. 198], the appellate authority has remanded the matter to a certain period while rejecting the petition for the periods under consideration. The Tribunal also has dismissed the appeal solely on the ground that the claim is barred by limitation. Moreover, on analyzing the materi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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