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TMI Blog2025 (5) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... i Vishwajeet Saharan, Authorized Representative (DR) - for the Department Shri Bipin Garg, Advocate - for the appellants Shri Rohit Issar, Authorized Representative (DR) - for the Department ORDER ASHOK JINDAL All the appeals are having common issue, therefore, all are disposed of by a common order. Revenue has also filed Cross Objections and the same are taken on record. I further take note of that the appeals have been filed by the appellants in the month of October 2024, whereas Cross Objections have been filed on 07.04.2025 when the matter was listed for final hearing. The Defect Memo was issued to the Revenue pointing out the following defects :- No verification of the cross objection, is not filed in proper format and undertaking required as per Circular dated 27.02.2017 to this effect the matter is not previous filed or pending before any legal forum before any Supreme court writ or High Court. It is considered that the Defect Memo issued to the Revenue is technical in nature, therefore, the defects mere removed and the Cross Objections are taken on record. As the Cross Objections have been filed on 07.04.2025 and no application for condonation of delay has been file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd claims cannot be rejected and the show cause notice, itself has recorded that the service recipient namely Rajasthan Housing Board has deducted the payment to be paid by the appellant and the 50% of the said tax has been deposited by the Rajasthan Housing Board with the Revenue. He further submitted that the refund claim are to be sanctioned along with interest after three months of filing of the refund claim till itself realization interest @ 12%, but no interest has been granted to the appellant, therefore, the said interest is payable to the appellant @ 12% as per provision of Section 11B and 11BB of the Act are not applicable to the facts of this case. 6. On the other hand, learned authorized representative appearing on behalf of the Revenue submits that as appellants has paid service tax on their own and the said assessment has become final, therefore, the same has not been challenged by the appellant, therefore, the refund claim are not applicable and refund is not entitled by the appellant and in the case of ITC Ltd. reported as 1993 (67) E.L.T. 3 (S.C.). He also relied on the decision of Mafatlal Industries Ltd. versus Union of India reported as 1996 (12) TMI 50 (S.C.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that service recipient had paid 50% of the service tax which had been rejected for want of documentary evidence, therefore, I hold that as it is a fact on record that service recipient paid the 50% of the service tax in that circumstances I hold that appellant is entitled for 50% of the service tax paid by the service recipient. 11. Through Cross Objections, the Revenue has objected the sanctioning of refund claim to the appellant. I find that in this case it is a fact on record that as per the show cause notice, refund claim sought to be rejected on the ground that time limit under Section 11B of the Act is applicable and refund claim is hit by unjust enrichment and appellant has not provided any factual reason for construction of single house and it is alleged that the appellant has not submitted original duty paying document and the appellant is not submitted any detailed work order. 12. Heard the parties, I find that the appellant produced the work orders showing that the service tax inclusive of the payment of service rendered by the appellant and the service recipient had deducted 50% of the service tax which is payable by the service recipient under reverse charge mecha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held that the said exemption is not available to the assessee and the appellant initially claimed for exemption and the said claim was not ineligible to the appellant and thereafter the appellant paid the duty along with interest. Later on, by the decision of the Hon'ble Apex Court in the case of SRF Ltd. it was found that appellant was entitled for exemption under Notification No. 30/2004-CE dated 01.03.2004. Consequently, they filed refund claim of duty paid. In the said case, it was held that interest is payable @ 6% and refund claim under Section 11B of the Act which is not the case in hand. In this case, appellant paid the service tax by mistake and which was not payable by the appellant. Therefore, the decision in the case of Triumph International (India) Pvt. Ltd. (supra) is not applicable to the facts of this case. Further, in the case of Dinesh Tobacco Industries Ltd. (supra), it is the case that the assessee claim refund of the central excise duty paid under compounded levy scheme on the goods which were exported and they were entitled for rebate of duty paid on goods exported which is not the case in hand. Further, Revenue is relied on the decision of the Hon'ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional-outside the provisions of the (I) Act or not contemplated by the Act. (b) The levy is based on misconstruction or wrong or erroneous (II) Interpretation of the relevant provisions of the Act, Rules or Notifications: or by failure to follow the vital or fundamental provisions of the Act or by acting in violation of the fundamental principles of judicial procedure. (c) Mistake of law - the levy or imposition was (III) unconstitutional or illegal or not exigible in law (without jurisdiction) and, so found in a proceeding initiated 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. After referring several judgments and provisions of Section 11A & 11B of Central Excise Act, at paragraph 137 of the said judgment, their Lordships have concluded as under : "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/unauthorized levy of tax can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty : (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the document referred to in Section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person." 18. From the reading of the above Section, it refers to claim for refund of duty of excise only, it does not refer to any other amounts collected without authority of law. In the case on hand, admittedly, the amount sought for as refund was the amount paid under mistaken notion which even according to the department was not liable to be paid. 19. According to the appellant, the very fact that said amounts are paid as service tax under Finance Act, 1994 and also filing of an application in Form-R of the Central Excise Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to demand refund of payment made by them under mistaken notion. ..... 23. Now we are faced with a similar situation where the claim of the respondent/assessee is on the ground that they have paid the amount by mistake and therefore they are entitled for the refund of the said amount. If we consider this payment as service tax and duty payable, automatically, Section 11B would be applicable. When once there was no compulsion or duty cast to pay this service tax, the amount of Rs. 1,23,96,948/- paid by petitioner under mistaken notion, would not be a duty or "service tax" payable in law. Therefore, once it is not payable in law there was no authority for the department to retain such amount. By any stretch of imagination, it will not amount to duty of excise to attract Section 11B. Therefore, it is outside the purview of Section 11B of the Act". and the said decision has been upheld by the Hon'ble Apex Court. Further, the Hon'ble High Court of Tripura in the case of Tripura Cricket Association (supra) Hon'ble High Court observed as under :- "4. Learned counsel for the petitioner placed reliance on the judgment rendered by the Hon'ble Karnataka High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en confirmed by the Hon'ble Supreme Court in the KVR Construction (supra) vis-à-vis the issue of limitation, we find no justifiable ground for the Commissioner of Central Tax (Appeals) to remit the case to the 'Call Book'. Hence, necessary immediate direction be given to return the file from the 'Call Book' and take up the matter immediately and dispose of the same within the time as directed hereinabove". 8. On going through the above judicial pronouncement of the case laws relied upon by both the sides, I am of the considered view that it is admitted fact that appellant had paid service tax by mistake which is not payable at all and same shall be treated as Revenue deposit not service tax paid by the appellant. Therefore, the provision of Section 11B of the Act is not applicable. The same view has been affirmed by the Hon'ble Apex court in the case of KVR Constructions Ltd. (supra). As provision of Section 11B are not applicable to the facts of the present case, in that circumstances, determining the rate of interest under Section 11BB of the Act is not applicable. Therefore, the Notification No. 67/2003 - CE (NT) dated 12.09.2003 also not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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