TMI Blog2024 (1) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 265 of the Constitution. The Hon ble High Courts of Bombay, Madras, Telangana and Calcutta have similarly held that refunds of amounts paid under mistake of law would not be hit by the statutory limitation periods. Thus, it is concluded that the statutory limitation period prescribed under Section 11B is not applicable to the refund claimed by the Appellant since the amount paid by the Appellant is not a tax. The present appeal is allowed. - HON BLE MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) Shri Nishant Mishra, Advocate for the Appellant Shri Sandeep Pandey, Authorized Representative for the Respondent ORDER P. K. CHOUDHARY : The Appellant has challenged Order-in-Appeal No.165/CE/ALLD/2021 dated 23.06.2021 passed by the Ld. Commissioner (Appeals), by which the appeal filed by the revenue has been allowed and the Order-in-Original No.13 (MP) (Refund) 2019 dated 26.12.2019 has been set aside. 2. The facts of the case in brief are that the Appellant is engaged in manufacturing of M.S Ingots, M.S bars etc. It is the case of the Appellant that on 18.04.2012, the Appellant was subjected to searches by the Officers of DGCEI. During investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim is barred by limitation. 6. Ld. Counsel for the Appellant submitted that since the payment of Rs.30 lakhs was made under-protest, the same does not bear the character of duty and therefore Section 11B (1) of the Act, which is applicable only for refund of duty of Excise and interest, has no applicability. He has also submitted that assuming without conceding that the amount of Rs.30 lakhs bear the character of duty, then also the bar of limitation of one year shall not be applicable, in terms of the second proviso to Section 11B (1). Lastly, he also argued that since in terms of order passed by this Tribunal, the Appellant was not liable to pay any single amount of duty, hence the amount of Rs.30 lakhs cannot be retained by the revenue as Article 265 of the Constitution prohibits levy or collection of tax except by authority of law. 7. Per-contra, the ld. DR appearing for the revenue has relied upon and reiterated the findings recorded in the impugned order. 8. Heard both sides and perused the appeal records. The issue in this appeal is that whether the bar of limitation under Section 11B (1) of the Act would be applicable in the facts and circumstances of the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dication proceedings or investigation is in the nature of deposit made under-protest or pre-deposit and therefore principles of unjust enrichment would not be attracted. The jurisdictional High Court also categorically held that such an amount cannot be retained by revenue, as it has no authority to retain such amount and it must be refunded along with interest. 11. The Hon ble Delhi High Court in Alar Infrastructures Private Limited v. Commissioner of Central Excise, Delhi [Order dated 14.10.2015 in CEAC No.11/2015] has considered the question of applicability of Section 11B of the Act in cases where the assessee is not liable to pay service tax:- 3. Having heard the submissions of counsel for the parties, this Court finds that the question of applicability of Section 11B of the CE Act read with Section 83 of the Finance Act, 1994 to the refund application of the Appellant would arise only if the CESTAT came to the conclusion that the services rendered by the Appellant were in fact liable to service tax. If, on the other hand, the CESTAT finds that the services rendered by the Appellant were not amenable to service tax at all, the question of processing the refund applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t deposited under-protest and consequently the revenue has no authority to retain such amount as it would be in violation of Article 265 of the Constitution. 13. The Hon ble High Courts of Bombay, Madras, Telangana and Calcutta have similarly held that refunds of amounts paid under mistake of law would not be hit by the statutory limitation periods, in the following judgments:- i. Parijat Construction vs. CCE, Nashik [2018 (9) G.S.T.L. 8 (Bom.)] 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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. iii. VasudhaBomireddy vs. Assistant Commissioner of Service Tax [2020 (35) GSTL 52 (Telangana)] 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 could not have demanded payment of the same from the petitioners; and merely because the petitioners made the payment, it would not partake the character of service tax‟ and the department cannot retain the amount paid by the petitioners which was in fact not payable by them. iv. Parimal Ray vs. Commissioner of Customs (Port) [2015 (318) ELT 379 (Cal.)] 17. Now I will consider the point of limitation. A person to w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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