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TMI Blog2025 (4) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... lloli, Advocate For Respondent Nos. 2 And 3). CAV ORDER The petitioner has challenged an order dated 27.11.2018 passed by respondent No. 2 in A.Nos.135/18/BM/ST, 136/18/BM/ST and 137/18/BM/ST and to set aside the orders of even dated 26.03.2018 in file Nos.BGM-EXCUS-000-GULBASC-MUK-010-17-18(R), BGM-EXCUS-000-GULB-ASC-MUK- 011-17-18(R) and BGM-EXCUS-000-GULB-ASC-MUK-012-17-18(R) passed by respondent No. 3. The petitioner has also sought for a writ in the nature of mandamus to direct the respondent No. 3 to allow the applications of even dated 22.01.2018 filed with Form-R to claim refund of wrongly paid service tax of Rs. 1,38,860/- during the year 2013-14 Rs. 3,72,435/- during the year 2014-15 and Rs. 3,63,836/- during the year 2015-16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the respondent No. 3 could not have rejected the claim for refund by applying Section 11B (1) of the Central Excise Act, 1944 (henceforth referred to as 'Act of 1944'). In support of his contention, he relied upon the Order dated 21.01.2020 passed by a Coordinate Bench of this Court in W.P. No. 53664/2016 [Mr. Shashidhar Bhat vs. Union of India and others], where this Court relying upon the judgment of the Division Bench of this Court in Commissioner of Central Excise (Appeals) vs. M/s. KVR Construction (W.A. Nos. 2992-93/2009), had held that the claim for refund cannot be negatived on the ground of delay in claming refund. The Coordinate Bench therefore, held that the impugned order refusing to refund the service charges p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were beyond the time prescribed under Section 11B of the Act of 1944 and therefore, rejected the same. The appeals filed by the petitioner before the respondent No. 2 were also rejected on the ground that the appeals were not filed within the time prescribed under Section 85 of the Finance Act, 1994. The respondent No. 2 has relied upon the judgment of the Hon'ble Supreme Court in the case of Singh Enterprises vs. CCE, Jamshedpur & Ors. [2008 (221) E.L.T 163], where it was held that the Commissioner (Appeals) has no power to condone the delay beyond thirty days. Similar reference is made in the case of Bengal Investments Ltd., vs. Assistant Commissioner [2016 (42) S.T.R. J274], where it was held that Section 85(3A) of the Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 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 (40 of 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 provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated not by the particular assessee, but in a proceeding initiated by some other assessee either by the High Court or the Supreme Court, and as soon as the assessee came to know of the judgment (within the period of limitation), he initiated action for refund of the tax paid by him, due to mistake of law. 11. At para 137 of the said judgment, the Hon'ble Supreme Court held as follows:- "137. Applying the law laid down in the decisions aforesaid, it is not possible to conclude that any and every claim for refund of illegal/unauthorised levy of tax can be made only in accordance with the provisions of the Act (Rule 11, Section 11B etc. as the case may be), and an action by way of suit or writ petition under Article 226 will not be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clauses (3) and (4)." (Underlining by me) 12. Therefore, it can safely be held that the limitation prescribed under Section 11B of the Act of 1944 would not strictly apply to a claim for refund of service tax wrongly paid and a writ petition under Article 226 of the Constitution of India is maintainable. In such an event, the principles of restitution as provided under Section 72 of the Contract Act, 1872, is applicable and the respondent No. 3 is bound to refund it notwithstanding the delay in filing the application for refund. 13. This is however, subject to the condition that there is an exemption from collection of service tax from transportation agencies, when they transport chemical fertilizers. In that view of the matter, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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