TMI Blog2022 (5) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Nothing may act as an embark on the right of the appellant to demand refund of payment made by them under the mistaken notion - The issue has been dealt by Hon ble Supreme Court in the case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [ 1996 (12) TMI 50 - SUPREME COURT] . 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 the present case also, due to the exemption of N/N. 25/2012 dated 20.06.2012 the services on which the appellant had paid service tax i.e. non air conditioned contract carriage under rent a cab service was the exempted service. Hence at the time of the payment the payment had no colour of liability as already discussed above section 11B of Excise Act is not applicable. Hence, the bar of limitation under section 11B also cannot be made applicable upon the said amount. Appeal allowed - decided in favor of appellant. - SERVICE TAX Appeal No. 52244 OF 2021 - FINAL ORDER No. 50393/2022 - Dated:- 5-4-2022 - Ms. RACHNA GUPTA, MEMBER (JUDICIAL) Ms. Shagun Arora Mr. Kunal Agarwal, Advocates for the appellant Mr. Mahesh Bharadwaj, Proxy Authorised Represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11B may be applied. The rejection on limitation ground is alleged to be absolutely erroneous. The reliance has been placed upon the following decisions: i. National Institute of Public Finance and Policy vs. Commissioner of Service Tax 2019 (20) GSTL 330 (Del) ii. Hitachi Metals (I) Pvt. Ltd. vs. Commissioner of Central Excise and Service Tax, Gurgaon-2019 (25) GSTL 573 (Tri-Chan.) iii. Venkatraman Guhaprasad vs. CGST CE Chennai 2020-VIL-233-CESTAT-CHE-ST iv. ASL Builder Private Ltd. Vs. Commissioner of Central Tax 2020 (1) TMI 431-CESTAT Kolkata 4. The order is accordingly prayed to be set aside and appeal is prayed to be allowed. 5. While rebutting the submissions the learned DR has laid emphasis upon the findings in para 15 of the order under challenge. It is submitted that the Commissioner (A) has meticulously considered the entire case laws as relied upon by the appellants and has distinguished the present case there from. Impressing upon no infirmity in the said order the appeal in hand is prayed to be dismissed. 6. After hearing the rival contentions and perusing the entire record of the present appeal, it is observed and held as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the applicant, if such amount is, relatable to- (a) rebate of duty of excise on excisable goods exported out of India or, on excisable materials used in the manufac- ture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant' s account current maintained with the Collector of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notifica- tion issued, under this Act; (d) the duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person; (f) the duty of excise borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify: Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a, case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person; (f) in any other case, the date of payment of duty. 7. From the bare reading of the above section, it is clear that the provision refers to the claim of refund of duty of excise only, it does not refer to any other amount collected without authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the provisions of the Act (Rule 11, Section 11B etc. as the case may be), and an action by way of suit or writ petition under Article 226 will not be maintainable under any circumstances. An action by way of suit or a petition under Article 226 of the Constitution is maintainable to assail the levy or order which is illegal, void or unauthorized or without jurisdiction and/or claim refund, in cases covered by propositions No. (1), (3), (4) and (5) in Dulalbhai's case, as explained hereinabove, as one passed outside the Act and ultra vires. Such action will be governed by the general law and the procedure and period of limitation provided by the specific statute will have no application (Collector of Central Excise, Chandigarh) M/s. Doaba Cooperative Sugar Mills Ltd., Jalandhar 1988 (37) ELT 487 (SC). 1988 Supp. SCC 683; Escorts Ltd. v. Union of India [1994] Supp (3) SCC 86 Rule 11 before and after amendment or Section 11B cannot affect Section 72 of the Contract Act or the provisions of Limitation Act in such situations. My answer to the claims for refund broadly falling under the three groups of categories enumerated in paragraph 6 of this judgment is as follows: W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is not applicable. Hence, the bar of limitation under section 11B also cannot be made applicable upon the said amount. 11. I further observe that the issue has repeatedly been clarified about non applicability of section 11B upon such refunds which pertains to an amount paid under mistake without any liability. The adjudicating authorities are observed to have miserably failed to follow the law as got settled by the Hon ble Apex Court, by various High Courts and by various Benches of this Tribunal as in the case of M/s. Chhattisgarh Civil Supplies Corporation Ltd. vs. Commissioner of Central Excise Service Tax reported as 2020 (2) TMI 1202-CESTAT New Delhi, in the case of Kerala Ex-serviceman Welfare Association vs. Comm of Service Tax Central Excise reported as 2022 (3) TMI 985-CESTAT BANGALORE and in the case of Dexterous Products Pvt. Ltd. vs. Comm of C.Ex S.T. Indore reported as 2019 (28) GSTL 51 (Tri-Del). 12. Hon ble High Court of Bangalore in the case titled as XL Health Corporation India Pvt. Ltd. vs. UOI Others reported as Writ Petition No. 37514/2017 decided on 22.10.2018 has held as follows: The adjudicating authorities throwing to the winds the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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