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TMI Blog2023 (5) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... t had also issued invoices to M/s HPCL for the services rendered by them during the said period and also discharged service tax on such invoices on self-assessment basis. Later on, HPCL disputed some of these invoices on that ground that they were not actually rendered by the Appellants as was mutually agreed and that the said dispute remained unresolved as of 20.06.2017. The Appellant, therefore, passed credit notes in their books of account for reversing the invoice income, including service tax, on the said invoices. They also took credit of excess service tax paid on the output services in respect of the unpaid/disputed invoices as per Rule 6(3) of Service Tax Rules 1994. Further, instead of carrying forward the excess tax paid as credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, on which they have not received payment from the HPCL, amounts to excess payment of tax and not in the nature of levy and is in the nature of deposit with the Government. They have cited certain case laws in support of their contention that service tax paid under mistake of law will not attract limitation prescribed under Section 11B of Central Excise Act. He has vigorously argued that in the case of Commissioner of Central Excise (Appeals), Bangalore Vs KVR Construction [2012 (26) S.T.R 195 (Kar)], the Hon'ble High Court has inter alia held that once a tax is not payable in law, there was no authority for Department to retain such amount and that it will not attract Section 11B. He further informed that SLP filed by Revenue has been di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of M/s Mafatlal Industries Ltd., as per which such refund has to be within the provisions of statutory provisions under Central Excise Act/Finance Act. It is an admitted fact that refund has been filed beyond the limitation prescribed under Section 11B as made applicable to service tax. Therefore, the only question is whether there is a provision under the Central Excise law or Finance Act to waive the limitation, within Section 11B, in case the payment of service tax has been made under mistake of law. In the instant case, the appellants were admittedly providing "taxable services" to M/s HPCL and were raising invoices and paying service tax also from time to time. However, during the period March 2015 to January 2016, M/s HPCL d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licability of Section 11B or otherwise and by implication, that of limitation under the central excise statute has been debated in detail by the Hon'ble Supreme Court in the case of M/s Mafatlal Industries Ltd., & Others Vs Union of India and others [(1997) 5 SCC 536 = 1997 (89) E.L.T. 247] holding, inter alia, that refund application has necessarily to be filed in accordance with the provision of the enactment unless refund was as a consequence of declaration of any provision under the law as unconstitutional where the person may resort to the writ jurisdictions or Contract Act etc. In this case, the facts narrated in, paras supra, shows that refund was not on account of any provision of service tax, which has been declared as unconstituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal memo as Annexure 12 refers). Thus the Circular is of no help in so far as to conclude that their services were not completed and hence they were not liable to pay any service tax as admittedly they had been issuing on regular basis after quantifying the value of service and getting paid as well. Therefore, merely because some of the invoices were disputed, which is now a subject matter of arbitration, it cannot be said that levy as well as payment of service tax by the Appellant were totally illegal or without the authority of law. 10. In the case of M/s Mafatlal Industries Ltd., Hon'ble Supreme Court has inter alia, observed and held that unless there is any refund becoming due on account of unconstitutionality of the statutory provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1B is wide and exhaustive and covers all possible situations where excise duty or service tax paid including erroneously paid, can be refunded. However, this is subject to rigors of limitation prescribed under the law itself before it is examined on merit. 12. In view of above, the order of Commissioner of Central Tax(Appeals) is liable to be upheld on the grounds of limitation itself and appeal filed by the Appellant is liable to be dismissed. As regards other observations of the Original Authority, rejecting the refund claim, it is observed that the Original Authority has denied the claim on account of limitations under Section 11B itself, and in addition, has also made certain other observations like lack of jurisdiction, lack of merit, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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