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TMI Blog2024 (8) TMI 1151X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax, was dismissed by the Customs, Excise & Service Tax Appellate Tribunal, Chandigarh (hereinafter referred to as 'CESTAT') 2. Appellant-the Haryana Vidyut Prasaran Nigam Limited, a Government of Haryana undertaking, is engaged in the work of power transmission and distribution of electricity. It engaged M/s T.D.S. Management Consultant Pvt. Ltd. (for short 'the TDS Management") to supply services of manpower during the financial years 2014-15 and 201516. It is stated that TDS Management was liable to pay service tax on the service rendered by them. It is stated that the appellant-company also deposited service tax on 29.06.2015, 06.07.2015 and 15.09.2015 of a total amount of Rs. 4,46,187/-. On the other hand, the TDS Management who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h stipulates that any person seeking refund of any duty may make an application before the Assistant/Deputy Commissioner of Central Excise, within one year from the relevant date. The Commissioner (Appeals)'s order dated 12.09.2017 is, therefore, also under challenge before this Court. 5. Further, appeal was preferred before the Customs, Excise and Service Tax Appellate Tribunal (for short 'CESTAT'), which relied upon the Larger Bench of the Tribunal and rejected the refund claim being time barred. 6. Learned counsel for the appellant has submitted that the limitation of one year is applicable to the duty paid and not on the amount which is deposited wrongly or under mistake and submitted that the limitation under Section 11B of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Central Excise (Appeals), Banglore vs. K.V.R. Construction 2012 (26) STR 195. He also relies on the judgment of the Tripura High Court in the case of Tripura Cricket Association vs. Union of India and others 223 (70) GSTL 259. 8. Counsel for respondent No. 2, Mr. Sunish Bindlish, relied on the judgment of the Hon'ble Supreme Court in Mafatlal Industries Ltd. versus Union of India 1997 (89) E.L.T. 247 (S.C.) to submit that if the amount has been deposited erroneously, the same is not liable to be refunded under Section 11B of the Act, 1944 and the State can retain it where the burden of duty is passed on to the third party. He also relies upon Veer Overseas Ltd. vs. Commissioner of Central Excise, Panchkula 2018 (15) GSTL 59, Assista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act : Provided further that the limitation of one year shall not appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. One cannot lose sight of the fact that the amount was wrongly deposited by some individual officer of the appellant company who did not check with the service provider relating to the tax having been already paid by the service provider. In the circumstances, the date of knowledge of wrong deposit has to be considered as a time from which the date of limitation would start and not from the date when the amount was deposited. 15. Article 265 of the Constitution of India prevents the authorities from collecting tax illegally. In other words, any amount which has been deposited with the State under a head can only be allowed to be retained if the same is deposited legally and not erroneously, illegally or without knowledge. 16. The claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic exchequers alone. 18. In the present case, service tax has been paid twice and the service provider has claimed the said amount from the appellant company which cannot be passed on since the appellant company itself has deposited the amount with the state exchequers. It is a case of dual payment. The other party namely TDS Management has not moved any application for refund. In the circumstances, the refund of the appellant-company cannot be denied solely on account of delay which has actually not occurred as it is from the date of knowledge. 19. Keeping in view the above, we allow the appeal and direct the respondents to refund the amount of Rs. 4,46,187/- deposited by the appellant-company along with interest. The refund shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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