TMI Blog2023 (6) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.10.2016, it is about the refund of the amount inadvertently paid by them again for the very same period i.e. July, 2016 to September, 2016 alongwith interest. It is not the case that the claim is fake or is not supported by any evidence. The department is admitting the double payment but denying the refund claim being beyond the period prescribed by Section 11B ibid. The Hon ble High Court of Judicature at Bombay in the matter of M/S PARIJAT CONSTRUCTION, M/S GIRIRAJ CONSTRUCTION VERSUS COMMISSIONER OF CENTRAL EXCISE [ 2017 (10) TMI 659 - BOMBAY HIGH COURT ] has held that the limitation prescribed u/s. 11B ibid is not applicable to refund claims for Service tax paid under mistake of law. In the present case although there is no mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeal-II), Central Tax, Pune rejecting the appeal filed by the appellant and upholding the order of the Adjudicating Authority that the refund claim is time barred in terms of Section 11B of the Central Excise Act, 1944. 2. The appellant are providing taxable service in the category of Consulting Engineering Service. During the period July, 2016 to September, 2016 they provided taxable service upon which service tax amount of Rs. 87,750/- was discharged vide challan dated 5.10.2016. However, inadvertently under the impression of non-discharge of the said liability, the appellant again on 13.4.2017 paid the service tax alongwith interest i.e. Rs. 87,750/- + interest Rs. 8228/- (totaling Rs. 95,978/-) for the same period i.e. Jul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of the amount inadvertently paid by them again for the very same period i.e. July, 2016 to September, 2016 alongwith interest. It is not the case that the claim is fake or is not supported by any evidence. The department is admitting the double payment but denying the refund claim being beyond the period prescribed by Section 11B ibid. The Hon ble High Court of Judicature at Bombay in the matter of Parijat Construction vs. Commissioner, Nashik; 2018 (359)ELT 113 (Bom.) has held that the limitation prescribed u/s. 11B ibid is not applicable to refund claims for Service tax paid under mistake of law. In the present case although there is no mistake of law but it has been paid by mistake as they have already discharged the duty and paid the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 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. 5. 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. 6. In view of the discussions made hereinabove, I am of the considered view that the appellant is entitled for refund of the amount of service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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