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TMI Blog2024 (9) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged service tax liability after availing the credit of input services in terms of CCR Rules. However, with respect to the services rendered to SEZ Unit, the Respondent claimed the exemption from the payment of service tax. 2.2 Since, the respondent was availing the CENVAT credit on the input services without maintaining separate accounts for taxable and exempted services. Accordingly, considering the services rendered to SEZ Unit as exempted, the Respondent paid an amount of Rs. 2,52,31,030 on the amount received against the services provided to SEZ Units for the period October 2011 to March 2012 ('Disputed Period'), in compliance of the Rule 6(3)(i) of the CCR Rule 2004. The respondent has also showed the reversal of the said amount of Rs. 2,52,31,030/- in the service tax returns produced on record. Subsequently, the respondent came to know that in terms of Rule 6(6A) of the CCR Rules, Rule 6(3) of CCR Rules is not applicable in case the taxable services are provided to SEZ Unit without payment of service tax. Thereafter, the respondent filed a refund application of Rs. 2,52,31,030 on 26 March 2013 claiming that the amount was paid inadvertently and erroneously dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944 as made applicable to the service tax matters. 5. On the other hand, Ld. Counsel appearing for the respondent supported the impugned order and submits that it is undisputed that the respondent has paid the amount of Rs. 2,52,31,030/- towards Cenvat credit under Rule 6(3) of CCR Rules inadvertently as reflected in the revised ST-3 returns for the period October, 2011 to March, 2012. He further submits that the objection of the Department that the payment was made from Cenvat credit and not via cash challans is immaterial for the purpose of refund claim. He further submits that denial of the refund claim would be against the constitutional provision under article 265 of the Indian Constitution. In support of his submissions, he relied upon the various decisions: * 3e infotech Vs. CESTAT (Madras HC) 2018[18] G.S.T.L. 410 * Abdul Samad Vs. Commissioner of CCE & ST, Mangaluru (Karnataka High Court) 2019 (367) E.L.T. 189 (Kar.) * Hindustan Cocoa Products Vs. Union of India (Bombay High Court) 1994 (74) E.L.T. 525 (Bom.) * Hitachi Metals Vs. CCE ST Gurgaon (CESTAT Chandigarh) 2019 (25) G.S.T.L. 573 (Tri.-Chan.) * Comm of C. Excise (Appeals) Bangalo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eproduced here in below: "Rule 6(6A) The provisions of sub rule (1), (2), (3) and (4) shall not be applicable in 6(6A) are provided without payment of service tax to a unit na Special Economic Zone for their authorized authorities." 8. Further, we find that the respondent after knowing that they have erroneously paid the service tax, filed the refund claim on 26.03.2013 but the Department raised the Deficiency Memo after almost four years but the respondent replied the deficiency memo and thereafter, the adjudicating authority rejected the refund on the ground of unjust enrichment as well as under Section 11B(1) of the Central Excise Act, 1944. Further, we find that the Ld. Commissioner (Appeals) after analyzing Rules 6(3) of the CCR Rules and Rule 6(6A) has held that Rule 6(3) does not refer to the duty of excise or service tax. The word used is 'amount' and not 'duty' or tax and further the amount so payable is not available as input tax credit to the recipient and therefore, the amount payable under Rule 6(3) CCR Rules is not "Service tax" payable under Section 66 of the Finance Act and further the Ld. Commissioner has held that the doctrine of unjust enrichme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation as provided under Section 11B of the Act. As could be seen, the petitioner has paid tax amount on a mistaken notion and the maintenance of books of MESCOM is not a taxable service, the department cannot get itself unjust enriched by relying on Section 11B of the Act. If the services are not coming within the ambit of taxable service as contemplated under the Act. Section 11B of the Act is not applicable. Hence, respondent No. 2 is directed to refund the tax amount to the petitioner. 11. Further, in the case of Hindustan Cocoa Products cited (Supra), the Bombay High Court has held as under: "7. We have carefully considered the rival submissions. There is no dispute about the fact that the classification of deodorised cocoa butter by the petitioner under Item 12 was a mistake of law which was discovered neither by the petitioner nor by the respondents till the year 1983. It was only in November 1983, when the petitioner having come to know of the said mistake, filed a revised classification list classifying the above item under Tariff Item 68 of the Schedule and on consideration of which the respondent- Assistant Collector also approved the revised classification filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of ECE Industries Ltd cited (Supra), the Tribunal has held as under: "5. I have considered the rival contentions and perused the records. There is no doubt that the nature of service rendered by the assessee was an exempted service which did not invite the levy of service tax and the original authority having been satisfied that a part of the claim for refund was eligible has sanctioned Rs. 3,33,299/-. The Ld. Commissioner (Appeals) though has reversed the same, there is no specific order with regard to the credit of the same into the Fund as required by Section 11B of the Central Excise Act, 1944, which means that the amount continued to remain only with the Revenue, which is clearly without authority of law. When there is no material on record to suggest that the appellant has, in fact, collected the service tax element despite the fact that the service was a non- taxable entity, the Revenue cannot retain the same without granting refund to the assessee. 13. Further, in the case of Commissioner of GST Rohtak Vs. Gawar Construction cited (Supra), the Hon'ble Punjab and Haryana High Court has held as under: "7. The Tribunal rightly found that merely because the n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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