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TMI Blog2022 (5) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... 292/2021 Details of BoE and Payments Sl.No. Bill of Entry No. Duty Payable (in Rs.) Duty Paid via Challan No. 52533076 dated 24.11.2014 (IDBI) Amount Paid via Challan No. 56068419 dated 25.11.2014 (SBI) Finally Assessed BOE dated 21.11.2014 1 7461616 3,67,350 3,67,350 3,67,350 2 7461541 3,14,633 3,14,633 3,14,633 3 7451218 66,348 66,348 66,348 4 7451206 2,40,008 2,40,008 2,40,008 5 7451178 2,85,974 2,85,974 2,85,974 6 7436555 2,21,426 2,21,426 2,21,153 Total of Finally Assessed BOE 14,95,739 14,95,466 Provisionally Assessed BoE dated 21.11.2014 7 7461606 5,16,473 5,16,473 5,16,473 8 7461263 8,29,310 8,29,310 8,29,310 Total of Provisionally Assessed BOE 13,45,783 13,45,783 C/50001/2022 Details of BoE and Payments Sl. No. Bill of Entry No. Duty Payable in Rs. Amount Paid via Challan No. 52533585 dated 24.11.2014 (IDBI) Duty Paid via Challan No. 56069531 dated 25.11.2014 (SBI) Finally Assessed BOE dated 20.11.2014 1 7449508 11,951 11,951 11,951 2 7449462 16,184 16,184 16,184 Total of Finally Assessed BOE 28,135 28,135 Provisionally Assessed BoE dated 21.11.2014 3 7462017 5, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment is therefore, liable to be refunded. With these submissions, the order under challenge is prayed to be set aside and appeal is prayed to be allowed. 6. Per contra, learned Departmental Representative supported the findings of the order under challenge while relying upon the said order. Impressing upon no infirmity in the order therein, both the appeals are prayed to be dismissed. 7. After hearing the rival contentions and perusing the record, it is observed and held as follows:- 1. There is no denial to the fact that Bills of Entry in both these appeals (8 BE in Appeals No. 52292/2021 and 5 BE in Appeals No. 50001/2022, the duty as was to be paid at the relevant time has been paid twice, once on 24.11.2014 and another on 25.11.2014. There is no denial to the fact that second payment was made because the payment made on 24.11.2014 was not reflected in ICES portal. The said admitted facts makes it clear that on the same number of BEs duty has been paid twice. As per Constitution of India Article 265, thereof duty cannot be collected beyond what is permissible by the law. Hon'ble Apex Court in the case of Union of India vs ITC Ltd. reported as [19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India - 1997 (89) E.L.T. 247 (S.C.) has classified the claim of refund into three groups of categories : (i) Unconstitutional levy (ii) Illegal levy (iii) Mistake of Law In that case, Section 11B of CEA was made applicable on the ground that the petitioner in that case has committed mistake of fact in understanding the Law as he assumed that the transaction for which he has paid tax is covered under law. In the present case, it is not the mistake of fact but the mistake of law that the Notifications extending exemptions to the appellant were not into his notice. Otherwise also, the distinguishing feature for attracting the provisions under Section 11B is that levy should have the colour of validity when it was paid and only consequent upon interpretation of law or adjudication, the levy is liable to be ordered as a refund which is again not the fact for the present case. The levy herein was not valid, in view of appellant's product being an exempted good towards service tax liability on GTA. I am therefore of the opinion that the Adjudicating Authority below has committed an error while considering the claim as time barred due to non-applicability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty, hence definitely get into the bar of time. It is observed that refund application as was made seeking refund is not for the refund of the amount paid on 24.11.2014. But as submitted by the assessee-appellant in the said application dated 16.11.2015 in both these appeals, that they have paid the double duty payment against the respective Bill of Entry in both the appeals, the prayer is for refund of excess amount paid than the amount of duty of Bes. While submitting before the Bench learned Counsel mentioned that appellant is a big company and double payment did not come to the notice till audit of its records and it is, thereafter, that the impugned application was filed. Since the payment of duty has been made twice, admittedly. Commissioner (Appeals) is held to have taken a wrong notion of the refund of amount paid on 24.11.2014 as duty. 5. The amount paid for the same duty but twice, one of the payment has to be refunded. Otherwise also in terms of section 17 of Limitation Act, whenever there is an application for a relief from the consequences of a mistake, the period of limitation would not begin to run until the plaintiff or applicant has discovered th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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