TMI Blog2022 (12) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court of Judicature at Bombay in the matter of Parijat Construction v. Commissioner Excise, Nashik, [ 2017 (10) TMI 659 - BOMBAY HIGH COURT ]. by holding that limitation prescribed under Section 11B of Central Excise Act, 1944 not applicable to refund claims for Service Tax paid under mistake of law. Refund allowed. - Service Tax Appeal No. 85076 of 2021 - FINAL ORDER No: A/86159/2022 - Dated:- 8-12-2022 - MR. AJAY SHARMA, MEMBER (JUDICIAL) Shri Bharat Raichandani, Advocate a/w Ms. Diksha Kukrety, Advocate for the appellant Shri Prabhakar Sharma, Supdt. (AR) for the respondent ORDER Appellant herein has filed the instant appeal challenging the Order-in-Appeal dated 10.9.2020 passed by the Commissioner (Appeals-Thane), CGST Central Excise, Mumbai by which the learned Commissioner in a denovo proceedings as remanded by this Tribunal, rejected the appeal filed by the appellant and upheld the order of Adjudicating Authority rejecting the refund claim filed by the appellant. 2. The facts leading to the filing of the instant appeal are stated in brief as follows. The Appellant is providing the services under the category of Club or Association Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided by one person to another. He further submits that the learned Commissioner erred in rejecting the application of principle of mutuality in the instant matter. He also submitted that for the subsequent period also i.e. 2016-17 in appellant s own case this Tribunal remanded the matter back to the Commissioner and upon remand, the learned Commissioner (Appeals) therein vide Order-in-Appeal dated 14.6.2021 allowed the appeal filed by the appellant claiming refund by applying the principle of mutuality and the Adjudicating authority vide order dated 26.8.2021 has sanctioned the said refund along with interest. As per learned counsel no service tax is leviable on transaction between a member and an incorporated society and in support of his submission the learned counsel placed reliance on the following decisions:- (i) State of West Bengal Ors. vs. Calcutta Club Ltd. Ors.; 2019-TIOL-449-SC-ST-LB and also (ii) The Joint Commercial Tax Officer vs. The Young Mens Indian Association MANU/SC/0472/1970 (iii)Ranchi Club Ltd. vs. Chief Commr.; 2012(26)STR 401 (Jhar) (iv) Sports Club of Gujarat vs. Union of India; 2013(32)STR 645 (Gujarat) (v) Tanhee Heights Co- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embers falls within the taxable net, came up for consideration before this Tribunal in the matter of Tahnee Heights Co-operative Housing Society Ltd. vs. Commr. of CGST, Mumbai South; 2019 (21) GSTL 440 (Tri.-Mumbai)and it has been held by the Tribunal that the activities undertaken by the appellant therein should not fall within the scope and ambit of taxable service, for payment of service tax. The relevant paragraph of the said decision read as under:- xxx xxx xxx 7. On reading of the above statutory provisions, it transpires that there is no much of difference for recognition of the taxable service in dispute, for levy of service tax, under both the un-amended and amended provisions of the service tax statute. In order to be categorized as a taxable service , there must be existence of two parties, i.e. the service provider and the service receiver. As far as the relationship between an incorporated society or club and its members is concerned, it is an undisputed fact that such incorporated association is a distinct legal entity. However, since the association was formed or constituted and existed for the exclusive purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause 67 of Maharashtra Co-operative Housing Society Bye Laws, formulated under the Act of 1960 earmarked the charges, in the form of contribution to be collected from the members of the society, which relates inter alia, for payment of property taxes, water charges, common electricity charges, contribution to repair and maintenance fund, contribution to sinking fund, service charges etc. Clause 69 of the said Bye law also provides that the committee shall apportion the share of each member towards the charges of the society on the basis mentioned therein. 10. On perusal of the above statutory provisions, it reveals that upon registration of the society, the same is legally accepted as a body corporate and thereafter, its function and operation are strictly guided as per the laid down bye laws, provided for the purpose. In this case, it is no doubt, a fact that the appellant is a co-operative society and is duty incorporated under the Act of 1960. The appellant also do not provide any services to its members, who pay the amount towards their share of contribution, for occupation of the units in their respective possession. Further, the fact is also not under dispute that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty bound to refund such amount as retention of such amount would be hit by Article 265 of the Constitution of India which mandates that no tax shall be levied or collected except by authority of law. Since Service Tax received by the concerned authority is not backed by any authority of law, in view of the provisions of Article 265 of the Constitution, the authority concerned has no right to retain the same. A similar view has been taken by the Hon ble High Court of Judicature at Bombay in the matter of Parijat Construction v. Commissioner Excise, Nashik, reported in 2018 (359) E.L.T. 113 (Bom.). by holding that limitation prescribed under Section 11B of Central Excise Act, 1944 not applicable to refund claims for Service Tax paid under mistake of law. The relevant paragraphs of the said decision are reproduced as under:- 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 Infrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (b) The claim for return of money must be considered by the authorities. 9. On similar lines, this Tribunal also in the matter of Javed Akhtar vs. CGST, Mumbai West; [2021] 132 taxmann.com 166 (Mumbai - CESTAT) in Service Tax Appeal No. 85611 of 2019, vide order dated 09.11.2021 has held that retention of any amount by the department which was paid by the appellant therein without any liability or in excess of the liability violates Article 265 of the Constitution of India. 10. Since as per the settled law the appellant was not liable to pay any tax therefore whatever has been paid by them was due to mistake of law. If that is so then the limitation as prescribed by section 11B ibid is not applicable at all. Although it is the case of the appellant that they have informed the authorities concerned vide communication dated 25.11.2015 about the payment of service tax under protest, but th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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