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TMI Blog2008 (6) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... during the relevant period and it has become specifically classifiable as taxable service under Section 65 (66) with effect from 01.07.2003 and hence the amount paid to the Government should be refunded. 4. The appellants were granted refund of Rs, 1,28,320/- being amount collected as Service Tax and paid between 01.10.2002 to 31.05.2003. The refund was granted by the Assistant Commissioner, vide Order-in-Original dated 24.12.2003 on the ground that the impugned services were out of the purview of Service Tax law. The balance amount of the refund claim of Rs. 5,27,350/- for the period from October, 1999 to September, 2002 was rejected on the ground of limitation and unjust enrichment clause of sub section (2) of the Section 11B of the Central Excise Act, 1944. 5. Aggrieved by the said order, the appellants preferred an appeal before the Commissioner (Appeals), who vide Order-in-Appeal dated 31.3.2004, accepted the fact that there is no unjust enrichment, as the appellants have refunded the amount to the client GACL. However, the appeal was rejected on the ground of limitation of time. 6. The appellants filed an appeal before the Tribunal. The Tribunal, vide Order dated 31.01.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruary/March 1995, since the mistake was discovered only in November 1995 when the public notice clarifying the legal position came to the knowledge of the petitioner, the period of limitation for the purpose of refund application would commence from November 1995, i.e., on discovery of mutual mistake of the parties. In the circumstances, we hold that provisions of Section 11B of the Act are attracted to the refund application filed by the petitioner. On the question of limitation, our conclusion is that since the claim is based on discovery of mistake, the period of limitation would not commence from the date of reversal of Modvat credit, but from the date when the mistake committed mutually of wrong reversal of credit by the parties was discovered in November, 1995. The refund claim has, therefore, to be held to be within time." (b) Commissioner Vs. Suncity Pvt. Ltd. reported in 2007 (218) ELT 174 (Raj), wherein the Hon'ble High Court of Rajasthan held that: "However, there is no dispute about the fact that the petitioner Union of India is not, in any event, entitled to retain the amount in question. If no duty was leviable and the assessee was not required to pay the duty s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Assistant Collector of Customs Vs. Anam Electrical Manufacturing Co. reported in 1997 (18) RLT 676 (SC)=1997 (90) ELT 260 (SC) while dealing with the question where the refund application was filed by the manufacturer/purchaser beyond the statutory time limit of Section 11B/27 ibid. it was held therein that "such petitions must be held to be untenable in law, regardless of any direction to the contrary contained in the order in any appeal, suit or writ jurisdiction. Statutory time limit is not extendable by any authority or court in case of illegal levy." 10. I have carefully considered the rival submissions. I have also perused the case records. I find the appellants got themselves registered with the Service Tax Department under the category of Management Consultant Services w.e.f. October, 1999. They paid the service tax unquestioningly. No protest was lodged. They were regularly filing the Service Tax Returns, which were being assessed by the proper officer. Therefore, what has been paid by them during the material period was service tax only. Since the service of pilotage rendered by them to GAIL is appropriately classifiable under the category of other 'Port Services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of law is taken by another court in another person's case. Nor is there any provision in the Act for re-opening the concluded proceedings on the aforesaid basis. In short, no claim for refund is permissible except under and in accordance with Rule 11 and Section 11B. An order or decree of a court does not become ineffective or unenforceable simply because at a later point of time, a different view of law is taken. If this theory is applied universally, it will lead to unimaginable chaos. Therefore, the theory of mistake of law and the consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by an assessee taking advantage of the decision in another assessee's case. All claims for refund ought to be, and ought to have been, filed only under and in accordance with Rule 11/ Section 11-B and under no other provision and in no other forum. An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be Jgnored and refund ordered in his favour just because in another assessee's case, a similar point is decided in favour of the manufacturer/assessee. [see the perti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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