TMI Blog2022 (9) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... held to be a deposit and not as a duty, therefore, there was no necessity for the petitioner to have made a claim invoking Section 11B of the Act for refund. Hon ble High Court of Bombay in the case of Parijat Construction Vs. Commissioner of Central Excise, Nashik [ 2017 (10) TMI 659 - BOMBAY HIGH COURT] , had held that the limitation prescribed under 11B of the Central Excise Act, 1944, is not applicable to refund claim for service tax paid under mistake of law. Hon ble Supreme Court in the case of Salonah Tea Company Ltd. Etc. v. Superintendent of Taxes, Nowgong Ors. [ 1987 (12) TMI 3 - SUPREME COURT] had held that if there is no provision for realisation of the money under a statute, then the act of payment is ultra vires and such money, if paid, is not paid under such statute and accordingly, the provisions under such statute would not apply - it is found that even in the present case, the amount so paid by the Appellant was not payable during the relevant period. Since the issue already stands decided, there is no reason to deny the refund claim on the ground of limitation inasmuch as the period of limitation prescribed under Section 11B would not be a bar for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of one year as prescribed under Section 11B. 2.3 In the Appeal before Commissioner (Appeals), CGST, Guwahati, the said rejection of refund claim by the lower authority was upheld. Further apart from holding that the said refund claim was not admissible since filed beyond the time limit prescribed under Section 11B, the Commissioner (Appeals) also observed that the assessee failed to produce reliable evidence to support their claim of refund. 3. S/Shri G.Natarajan Kartik Jindal, both Advocates appeared for the Appellant and Sri K.Chowdhury, Ld.Authorized Representative (A.R.) appeared for the Revenue. 4. The Ld.Advocate appearing for the Appellant relied on several judgements, including the decision of the Hon ble Karnataka High Court in the case of K.V.R. Constructions vs. CCE, Bangalore[2010 (17) S.T.R. 6 (Kar)],to submit that when tax is legally not payable, the amount paid by the assessee would be considered to be deposit which cannot be retained by the Revenue and that the period of limitation prescribed under Section 11B would not apply. The aforesaid decision rendered by Hon ble Single Bench has been further upheld by the Division Bench of Karnataka High Court re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the document 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. 18. From the reading of the above Section, it refers to claim for refund of duty of excise only, it does not refer to any other amounts collected without authority of law. In the case on hand, admittedly, the amount sought for as refund was the amount paid under mistaken notion which even according to the department was not liable to be paid. 19. According to the appellant, the very fact that said amounts are paid as service tax under Finance Act, 1994 and also filing of an application in Form-R of the Central Excise Act would indicate that the applicant was intending to claim refund of the duty with reference to Section 11B, therefore, now it is not open to him to go back and say that it was not refund of duty. No doubt in the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om.)], had held that the limitation prescribed under 11B of the Central Excise Act, 1944, is not applicable to refund claim for service tax paid under mistake of law. The relevant paragraphs are reproduced below : 5 . We are of the view that the issue as to whether limitation prescribed under Section 11B of the said Act applies to a refund claimed in respect of service tax paid under a mistake of law is no longer res integra. The two decisions of the Division Bench of this Court in Hindustan Cocoa (supra) and Commissioner of Central Excise, Nagpur v. M/s. SGR Infratech Ltd. (supra) are squarely applicable to the facts of the present case. 6 . Both decisions have held the limitation prescribed under Section 11B of the said Act to be not applicable to refund claims for service tax paid under a mistake of law. The decision of the Supreme Court in the case of Collector of C.E., Chandigarh v. Doaba Co-Operative Sugar Mills (supra) relied upon by the Appellate Tribunal has in applying Section 11B, limitation made an exception in case of refund claims where the payment of duty was under a mistake of law. We are of the view that the impugned order is erroneous in that it appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and ought to be refunded. 14 . There is no doubt in our minds, that if the Revenue is allowed to keep the excess service tax paid, it would not be proper, and against the tenets of Article 265 of the Constitution of India. On the facts and circumstances of this case, we deem it appropriate to pass the following directions :- (a) The Application under Section 11B cannot be rejected on the ground that is barred by limitation, provided for under Section. 10. I find that the Hon ble High Court of Telangana in the case of Vasudha Bommireddy Vs. Assistant Commissioner of Service Tax, Hyderabad [2020 (35) GSTL 52 (Telangana)], held that merely because payment made by petitioner, the same not to partake character of service tax and Department cannot retain amount. The relevant paragraph is reproduced below : 18 . Having regard to these decisions, we are of the opinion that if the petitioners were not liable to pay service tax on the transaction of the purchase of the constructed area along with goods apart from undivided share of land at all, the payment which was made by the petitioners would not be a payment of service tax at all; that the department also coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the provisions of the statute would apply only when duty was leviable under such statute. Accordingly, when the money has been paid by mistake, the person in receipt of such money becomes at common law a trustee with an obligation to repay the sum received. It was further held that when a wrong is continuing, there is no limitation for instituting a suit complaining about it. Therefore, even in the present case, the amount paid by the Appellant was not tax and was never leviable under the provisions of the Finance Act, 1994 or the Central Excise Act, 1944 and accordingly, the period of limitation provided therein would not apply. 13. I find that in another judgment passed by the Hon ble Calcutta High Court in the case of East Anglia Plastics (I) Ltd. v. Assistant Collector of Customs [1990 (50) ELT 508 (Cal.)], the Hon ble High Court had held that when tax is collected without authority of Law, i.e. when such tax was not payable or leviable, the Revenue cannot retain the amount so collected under the garb of limitation, as the Revenue has acted without jurisdiction in collecting such amount paid by the assessee. 14. Further, I find that the Hon ble Supreme Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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