9911796707
TMI Blog2025 (2) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... Registration No. AAIPT2126NST001. The appellant had filed a refund claim for an amount of Rs.6,30,235/- with the jurisdictional authorities, as he had made duplicate (double) payment of service tax inadvertently, on the grounds that as against the service tax liability of Rs.6,30,235/- for the period April, 2017 to June 2017, they paid the liability vide challan no. 01515 dated 04.07.2017 and again vide another challan no. 01376 dated 04.07.2017. As there was payment of tax twice against the same liability, the appellant had filed a refund claim of Rs.6,30,235/-. 2.3 The learned Counsel for the appellant had stated that they had tried to file refund application on old website www.aces.gov.in on 20.10.2018, 15.11.2018; Further, they tried to file the refund claim on new website www.cbic-gst.gov.in also but not succeeded in both attempts. Hence, they had filed the present refund claim physically with the jurisdictional authorities on 05.02.2020. 2.4 The department had issued Show Cause Notice (SCN) dated 03.03.2020 to the appellant for seeking why the refund claim filed by them should not be rejected under the provisions of Section 11B of Central Excise Act 1944 read with Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by one person to another. Hence, he stated that the appellant has neither carried out any activity nor service is provided or agreed to be provided, therefore service tax not leviable for the second time and the amount deposited in government exchequer shall not partake the character tax and as such is in the nature of deposit of an amount with the government, which the revenue cannot retain or withhold and question of applying limitation under section 11B of the Central Excise Act, 1944 would not arise. 3.3 In support of their case, the Learned Counsel had relied upon the judgements in the following cases: (i) Swastik Sanitarywares Ltd. Vs Union of India - Gujarat High Court Special Civil Application No.4676-of-2004-29-08-2012[2012 (37) STT 508 (27)Taxman.com.12(Gujarat) (ii) Star Textile Engg. Works Ltd. Vs. Collector of Customs - 1984 (22) ELT 552 Tri Mumbai (iii) Bansal Biscuits Private Limited Vs. Commissioner of Central Excise & Service Tax, Patna - Final Order No.77849/2023 dated 17.11.2023. 4. Learned Authorized Representative (AR) appearing for Revenue, reiterated the findings made by the Commissioner (Appeals) in the impugned order and submitted that in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over a period for which the service tax payable is "X" and when the same has been paid firstly as per law, and secondly by mistake inadvertently, it is obvious that the amount paid in the context of service tax for the second time has no legal basis, either for levy or for payment as service tax, inasmuch as there is no taxable event for which the levy and payment would apply. 8.1 The above issue has been dealt with in detail by the Co-ordinate Bench of the Tribunal in the case of Bansal Biscuits P Ltd. (supra), wherein it was held that the limitation of time prescribed under Section 11B ibid is not applicable. The relevant paragraphs of the said order is extracted and given below: "13. Based on the decision of Third Member Reference Bench, the CESTAT, Hyderabad vide its Final Order No. A/30082/2022 dated 05/09/2022 in the Credible Engg. Construction Vs. CCE, Hyderabad, has held as under:- "46. In view of the difference of opinion, the following questions arise for consideration by learned 3rd Member: (1) Whether the limitation prescribed under section 11B of the Central Excise Act will not be applicable as the tax was paid erroneously though eligible to exemption and as such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified there under and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 - cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. 15. In the present case, however, we fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the same cannot be paid by the 15th of the month following the end of the month when such service was provided. Thus, if the petitioner deposited such duty with the Government during a particular quarter on the basis of billing without actual collection, he had discharged his liability under sub-section (3) of section 68. Thereafter, on an artificial basis, the Assessing Officer could not have held that he ought to have deposited same amount once all over again in the following quarter. This is fundamentally flawed logic on the part of the Assessing Officer. (13) Further, to accept such formula adopted by the Assessing Officer would amount to collecting the tax from the petitioner twice. The petitioner having already paid up the service tax even before collection in a particular quarter, cannot be asked to pay such tax all over again in the following quarter on the same service on the ground that such tax had to be deposited in the later quarter but was deposited earlier. Any such action would be without authority of law. Further, before raising demand of Rs. 1,19,465/- under the head of duty short paid, the Assessing Officer should have granted adjustment of the duty alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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