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TMI Blog2024 (11) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-18 dated 12.12.2017. The appeal against the said order has been rejected vide order-in-appeal No. 23/2019 dated 30 June, 2019. Being aggrieved, the appellant is before this Tribunal. 2. We have heard Shri A.K. Prasad, learned counsel for the appellant assisted by Ms. Surbhi Sinha and Ms. Jaya Kumari, learned departmental representative appearing for the revenue. 3. Learned counsel for the appellant has mentioned that initial refund claim dated 18.06.2008 was proposed to be rejected vide show cause notice No. 3185 dated 15.09.2008. The proposal was confirmed vide order-in-original dated 30.06.2009. the claim was rejected both on merits as well as on time bar. Appeal against the said order was rejected vide order-in-appeal dated 07.10.2010. The said order has been set aside by this Tribunal vide final order No. 52873-52874 dated 07.04.2017. The appellants were held entitled for refund claim of Rs. 55,32,646/- by the CESTAT both on merits as well as on limitation grounds. However, the claim was remanded back for being disposed off as per law. Thereafter, the appellants requested the department to sanction the refund claim pending with them since 18.06.2008. But, instead of honour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the adjudicating authority below. Learned departmental representative has relied upon the decision of Hon'ble apex Court in the case of ITC Ltd. versus Commissioner of Central Excise, Calcutta reported as 2019 (368) E.L.T. 216 (S.C.) wherein it has been held that the claim of refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings. The decision of Hon'ble Delhi High Court in the case of V.T. (India) Pvt. Ltd. versus Union of India dated 06.11.2023 in writ-petition Civil No. 13968 of 2021 is also relied upon. With the submissions, learned departmental representative has prayed for appeal to be dismissed. 5. Having heard the rival contentions, we observe that the refund claim of Rs. 55,32,646/- was for the first time filed on 18.06.2008. This was the amount which was deposited by the appellant during investigation in lieu of the alleged service tax liability for rendering services to EMD, USA which appellant bonafide believing it to be an activity of export of service inviting no tax liability. We also observe that this Tribunal in National Engineering Ltd. i.e. appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on merits viz-a-viz the liability of the appellant to pay service tax, however, Tribunal directed the concerned authorities to reconsider the refund claim of the appellant as per law. Consequent to the said order that said amount was claimed to be refunded by the subsequent application dated 14.07.2017. Department issued a fresh show cause notice proposing rejection of the refund claim on the grounds of limitation. 7. We observe several decisions have been relied upon by the appellant to show that the activity of the appellant amounts to Export of Service. Principal Bench of this Tribunal in the case of Orbit Research Associates Pvt. Ltd. versus CST vide Final Order No. 50970 of 2023 dated 31.07.2023 has set aside the contention of the department that the services provided by the assessee to foreign clients are classifiable as Business Auxiliary Services. It has been held that such services amount to Export of Service on which they arises no service tax liability. In appellant's own case also similar findings for refund claim of earlier period have been announced as quoted above. It becomes clear that the appellants were not liable to pay any amount of service tax on the commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the State in the matter of refund of unlawfully recovered taxes and imposts. On the one hand, with its seal of approval firmly put on the doctrine of "unjust enrichment", the judgment gives a passive bent to the right of an assessee to seek refund of taxes illegally and un-authorisedly collected from him. On the other hand, with its strict and unsparing interpretation of the "ouster" and "limitation" clauses contained in the statutes in question viz. the Central Excises and Salt Act, 1944 and the Customs Act, 1962, it curtails the remedies hitherto available to an assessee for seeking such refund in different courts and jurisdictions. The right to refund and the remedy for refund are, indeed, the two mainstreams of the said decision. 11. On the question of right to refund i.e. the assessee's substantive right to refund of the illegally recovered tax, the judgment finally bids farewell to the time-honoured notion that the right to refund flows automatically as an absolute right from the mandates of Article 265 of the Constitution of India and Section 72 of the Indian Contract Act, 1872 and that it cannot be diluted or affected by any such equitable plea as "unjust enrichme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and still, on the other hand, confines it to a mistake of law discovered only upon a decision being pronounced by the Supreme Court in some other assessee's case wherein "the Supreme Court holds, in the case of some other manufacturer that the levy of that kind is not exigible in law"; furthermore, even the Supreme Court decision contemplated is one rendered in a case of "unconstitutional levy" and not of "illegal levy"3 . The noteworthiness is owing to the fact that Section 72 of the Contract Act itself is not limited to such a qualified category of refund claims founded upon the ground of "mistake of law". 13. On the basis of such categorisation, the majority view proceeds to examine, while acknowledging the true intent and import of the ouster and limitation clauses obtaining in the law concerned, as to in what situations and for what periods of limitation different remedies such as: (1) writ under Article 226 or Article 32 of the Constitution of India; or (2) civil suit under the Code of Civil Procedure; or (3) statutory application under the law concerned are expected to be available or unavailable to an assessee desirous of seeking refund of an illegally recov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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