TMI Blog2009 (10) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be entertained beyond the period specified in Section 11B of the Central Excise Act, 1944 – held that – claim of the petitioner for refund can be entertained by this Court, since there is no dispute about the fact that no service tax was payable by the petitioner and as a corollary, what was paid by them was not service tax - Therefore, even on merits, the petitioner is entitled to seek refund - 15357 of 2009 - - - Dated:- 20-10-2009 - V. RAMASUBRAMANIAN Ms. Pushya Sitaraman for the Petitioner. Mr. Vikram Ramakrishnan for the Respondent. ORDER The petitioner has come up with the present writ petition, seeking a Mandamus, directing the respondent to refund the service tax paid by them under a mistake of law, on ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner had collected service tax from the customer, so as to become disentitled to claim refund. 6. On the first question, there is no dispute that Section 11B of the Central Excise Act, 1944, prescribes a period of limitation for filing a claim for refund. But the period of limitation would start running only from the relevant date . The phrase relevant date is defined in Clause (B) of the Explanation to Section 11B. The definition is not rigid or fixed, but varies from situation to situation. While sub clauses (a) to (e) of Explanation (B) deal with the definition of the phrase relevant date , in relation to the goods exported, goods returned, the goods manufactured or the goods purchased, sub clause (f) states that the phra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a claim for refund of any duty of excise . But unfortunately, the word duty is not defined under the Act. In Chhotabhai Jethabhai Patel and Co. vs. Union of India {AIR 1962 SC 1006}, a Constitution Bench of the Supreme Court pointed out with reference to Entry 84 of List I of Schedule VII of the Constitution that a duty of excise is a tax-levy on home produced goods of a specified class or description, the duty being calculated according to the quantity or value of the goods and which is levied because of the mere fact of the goods having been produced or manufactured and unrelated to and not dependent on any commercial transaction in them . The Supreme Court also pointed out that the primary and fundamental meaning of excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would also lie. For filing a writ petition to recover the money paid under a mistake of law, this Court has said that the starting point of limitation is from the date on which the judgment declaring as void the particular law under which the tax was paid was rendered, as that would normally be the date on which the mistake becomes known to the party. If any writ petition is filed beyond three years after that date, it will almost always be proper for the Court to consider that it is unreasonable to entertain that petition, though, even in cases where it is filed within three years, the Court has a discretion, having regard to the facts and circumstances of each case, not to entertain the application. 12. Though the above views were e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner, the petitioner has stated that they actually received less than the invoice value and they did not collect any service tax from their customers. Along with the affidavit, the petitioner has also filed the e-mail correspondence and the certificates of foreign inward remittance dated 12.4.2005, 26.5.2005 and 11.1.2007, to show the actual payment received. These documents clearly show that the petitioner is not attempting to make an unjust enrichment for themselves, by seeking refund of service tax which they had already collected from their customers. Therefore, even on merits, the petitioner is entitled to seek refund. 16. In view of the above, the petitioner is entitled to succeed. Hence the writ petition is allowed and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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