TMI Blog2021 (10) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... from these dates of the challan to hold that the refund claim is barred by limitation. It has to be mentioned that the appellant has come to know about the excess payment only after the filing of the returns on 23.10.2018. The refund claim having been filed on 29.11.2018 when computed from the date of filing of the ST-3 returns, it cannot be said that there is a delay in filing the refund claim. Section 11B of Central Excise Act, 1944 does not talk about the relevant date for computing the period of limitation in the case of payment of service tax. In the present case, the refund arises out of excess payment. The excess payment can be ascertained only when the appellant files the ST-3 returns. When such facts are put into consideration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scharging their service tax liability. The balance outstanding to be paid was ₹ 61,52,881/-. However, instead of paying ₹ 61,52,881/-, the appellant made payment of ₹ 64,58,056/- towards discharging the service tax liability. Thus, there was an excess payment of ₹ 3,05,175/- They filed a refund claim on 29.11.2018 for refund of the excess payment made by them. The original authority rejected the refund claim holding that the tax payment having been made vide challan dated 20.7.2017 and 1.6.2017, the refund claim filed on 29.11.2018 is beyond one year period as prescribed under section 11B of the Central Excise Act, 1944. In appeal, Commissioner (Appeals) upheld the same. Hence the appellants are now before the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Heard both sides. 5. The issue is with regard to rejection of refund claim on the ground that it is barred by limitation. The facts are clear from para 7.1 of the Order in Appeals which is reproduced as under:- The following undisputed points are discerned from the facts of the case. The ST3 return for the period April 2017 to June 2017, with a service tax liability of ₹ 78,37,359/- was filed by the appellant on 23.10.2018 after a delay of 434 days. While discharging the above liability through cash and credit, the appellant had made an excess payment of ₹ 3,05,175/-. The cash payment made vide challans were dated 20.7.2017 and 1.6.2017. the refund claim for such excess payment was filed on 29.11.2018 which was beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e excess payment can be ascertained only when the appellant files the ST-3 returns. When such facts are put into consideration, in strict sense, it cannot be said that there is a delay in filing the refund claim. It is an excess payment made by the appellant. Needless to say that the department cannot retain any amount which is not collected / paid under authority of law. 7. The jurisdictional High Court in the case of 3E Infotech (supra) has categorically held that section 11B cannot be applied when the tax has been paid under mistake and when not required to be paid. The relevant paragraph is as under:- 11. A similar view has been taken by the Bombay High Court in the case of Parijat Construction v. Commissioner Excise, Nashik, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are, therefore, of the view that the impugned order is unsustainable. We 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee, 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. 9. This Tribunal in the case of Bhavya Enterprises (supra) and Nilkamal Ltd. (supra) has followed the decisions of the jurisdictional High Court. 10. Applying the above judgments / decisions, I am of the view that the rejection of refund claim as time-barred in terms of section 11B of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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