TaxTMI 
TaxTMI 
2022 (5) TMI 651
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....y no. 23 (b). Consequent thereto that the appellant filed a refund claim of Rs.7,71,592/- dated 28.9.2018. However, vide show cause notice no. 26597-26598 dated 21.2.2020. The said refund claim was proposed to be rejected as being barred by limitation in terms of section 11B of Central Excise Act 1994. The said proposal was initially confirmed vide order in original no. 14/2019 dated 25.9.2020. The appeal thereof has been rejected upholding the said OIO vide order in appeal no. 12/2021-22 dated 24.9.2021. Being aggrieved the appellant is before this Tribunal. 2. I have heard Ms. Shagun Arora and Mr. Kunal Agarwal, learned Counsel for the appellant and Mr. Mahesh Bharadwaj, Authorised Representative for the respondent. 3. It is submitted on behalf of the appellant that the adjudicating authorities below have not denied that the appellant was not liable to pay any service tax on rent a cab service under reverse charge mechanism, the services being exempted. Despite the said acknowledgement, the refund claim has been rejected on the grounds of limitation as prescribed under section 11B of the Central Excise Act. It is submitted that the applicability of the provisions of the said se....
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.... the provisions of section 11B reads as follows: "Section 11B: Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date in such form 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: Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 , such application shall be deemed to have been made under this sub- section as amended by the said Act and the same shall be dealt with in accordance with the provisions of subsection (2) as substituted by that Act]: Provided further that] the limitation of six months shall not apply where any duty has been paid under protest. (2) if, on receipt of any such application, the Assistan....
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....es any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done there under. (5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub- section (2), including any such notification approved or modified under sub- section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette."] 3 Explanation.- For the purposes of this section,- (A) " refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) " relevant date" means,- (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods,- (i) if the goods are exported by sea or air, the date on which the ship or the aircraf....
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....ustries vs. CCE reported as 1997 (89) ELT 247 SC. It has been held that one has to see whether the amount claimed is unconstitutional and outside the provisions of section 11B of the Act. In paragraph 113 of the said judgment My Lords have classified various refund claims into three groups or categories as follows: i. The levy is unconstitutional-outside the provisions of the (1) Act or not contemplated by the Act. ii. The levy is based on misconstruction or wrong or erroneous (II) Interpretation of the relevant provisions of the Act, Rules or Notifications: or by failure to follow the vital or fundamental provisions of the Act or by acting in violation of the fundamental principles of judicial procedure. iii. Mistake of law - the levy or imposition was (III) unconstitutional or illegal or not exigible in law (without jurisdiction) and, so found in a proceeding initiated not by the particular assessee, but in a proceeding initiated by some other assessee either by the High Court or the Supreme Court, and as soon as the assessee came to know of the judgment (within the period of limitation), he initiated action for refund of the tax paid by him, due to mistake of law. After ....
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.... amounts paid under mistaken notion since cannot be considered as duty of excise, therefore, bar of limitation under section 11B cannot be applied and the limitation on this provision would not come in way of any person claiming refund of the amount which was not his liability. Similar decision has been given by the Division Bench of this Tribunal in the case of Motorola India Ltd. vs. CCE reported as 2006 (206) ELT 90 Kar. The Principal Bench of this Tribunal also in the case of Oriental Insurance Company Ltd. Vs. CCE reported as 2020 (1) TMI 324 while laying emphasis upon the decision of the Delhi High Court in the case of M/s. National Institute of Public Finance and Policy (Supra). has held that if service tax was not leviable but it was paid by mistake the amount has to be refunded to the assessee. It was held that the distinguishing feature for attracting the provision under section 11B is that the 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 refund when payment was effected if it has no colour of legality section 11B does not at all gets attracted. 10. In the prese....