TaxTMI 
TaxTMI 
2017 (4) TMI 1130
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....y the doctrine of unjust enrichment, but did not order to credit the same to the Consumer Welfare Fund and accordingly remitted the matter back to the adjudicating authority. Hence the present appeals before the Tribunal. 2. The ld.Counsel appearing on behalf of the appellant company filed written submissions and also compilation of work orders, sample invoices and copy of decisions relied upon. He contended that the show cause notices issued for rejection of the refund claims as time bar, which is contested by the appellant on the ground that they are not liable to pay any Service Tax and the amounts paid under mistake of law should not be treated as Service Tax and accordingly the provisions under Section 11B of the Central Excise Act, 1944 would not apply on the aspect of time bar. It is also the case of the appellant that the lower authority has not recorded any findings in this regard which would mean that he has accepted the plea raised by the appellant. Further, the Revenue was not in appeal before the First Appellate Authority on the plea of time bar. The Ld.Advocate further contended that the First Appellate Authority was not justified in observing that if the refund wa....
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....ties. 5. Heard both sides and perused the appeal records. 6. I find from the record that there is no dispute that the Service Tax was collected wrongly from the appellant during the period 2007-08 and 2008-09. Both the authorities below denied the refund claim on the ground that a part of the refund claim is barred by limitation beyond the period of one year from the date of deposit of Service Tax as evident from GAR-7 challans. The ld.Counsel referred to the decision of the Hon'ble Karnataka High Court in the case of Commr. of C.Ex. (Appeals), Bangalore v. KVR Construction [2012 (26) S.T.R. 195(Kar.)], where the appeals filed by the Revenue was dismissed. In that case, Service Tax was paid mistakenly on construction service. After considering the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India [1997 (89) E.L.T. 247(SC)], the appeal filed by the Revenue was dismissed. It has been held as under :- "15. We are not concerned with the other conditions of Section 11B of the Act because it is not the case of the appellant Department that the burden of service tax was passed on to any other person. As a matter of fact, the con....
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....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 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 maintainable under any circumstances. An action by way of suit or a petition under Article 226 of the constitution is maintainable to assail the levy or order which is illegal, void or unauthorized or without jurisdiction and/or claim refund, in cases covered by propositions No. (1), (3), (4) and (5) in Dulalbhai's case, as explained hereinabove, as one passed outside the Act and ultra vires. Such action will be governed by the general law and the procedure and period of limitation provided by the specific statute will have no application (Collector of Central Excise, Chan....
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....proached this Court contending that Section 11B is not applicable as there was no duty cast on them to pay service tax and they have paid such amount under mistaken notion. Viewed from nay angle, we are of the opinion that the learned Single Judge was justified in setting aside that portion of the order which rejected the claim of refund and accordingly same is confirmed." 7. In the case of Jubilant Enterprises Pvt.Ltd. v. Commissioner of C.Ex., Mumbai-I [2014 (35) S.T.R. 430 (Tri.-Mumbai) the Tribunal allowed the appeal on the identical situation. The relevant portion of the said decision is reproduced below:- "6. In this case, the appellant has paid service tax during the impugned period for which they are not required to pay service tax at all as clarified by C.B.E. & C. As the payment made by the appellant is not of service tax, therefore, as held by this Tribunal in the case of Shankar Ramchandra Auctioneers (supra) the provisions of Section 11B of the Central Excise Act are not applicable. Therefore, the refund claim filed by the appellant is not time-barred. The case law relied upon by the ld. AR in Mafatlal Inds. (supra) is not relevant to the facts of this case....
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....laim for the amount, which they paid the Service Tax to the department, but they have not received the same from their clients. Moreover, this fact has been corroborated by their balance-sheet showing that the amount is receivable from the Central Excise and Chartered Accountant has also given a certificate to that effect. In this situation, the respondent has qualified the bar of unjust enrichment and the same is not applicable in this case." 9. In the case of Geojit BNP Paribas Financial Services Ltd. v. C.C.E., CUS & S.T., Kochi [2015 (39) S.T.R. 706 (Ker.)], the Hon'ble High Court of Kerala allowed the appeal filed by the assessee after considering the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd.(supra). The relevant portion of the said decision is reproduced below:- "8. The learned counsel for the Department, relying on the judgment of the Hon'ble Supreme Court in Mafatlal Industries Ltd. and Others v. Union of India and Others [(1997) 5 SCC 536 = 1997 (89) E.L.T. 247 (S.C.)] would argue that even if the payment was made under a mistake, the refund can only be processed in terms of Section 11B of the Central Excise Act. In the above....
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....have rejected the claim on the ground that the refund of the service tax would amount to unjust enrichment. 2. We have perused the records and heard both sides. It is not in dispute that no service tax was leviable during the period in question. Therefore, whatever payment was made did not relate to service tax at all. It was merely an erroneous collection by DOT and payment by the appellants. Therefore, provisions relating to refund of service tax, including those relating to unjust enrichment, cannot have any application to the return of the amount in question. It is further noted that provisions contained in Section 11D of the Central Excise Act have not been made applicable to service tax. Therefore, if any amounts are collected erroneously as representing service tax, which is not in force, there is no bar to the return of such amounts. The rejection of refund application was, therefore, not correct." 11. Regarding unjust enrichment, the assessee sold the goods on a composite price inclusive of all duties, there is no question of unjust enrichment as has been held by the Tribunal in the case of Himatsingka Seide Ltd. v. Commissioner of Customs, Bangalore [2005 (191....
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....ion that the rates are inclusive of all duties would not lead to the necessary presumptions or conclusion that excess duty should be held to have been covered or provided for. The price here was a lump sum amount and the usual condition that the rates are inclusive of all duties and taxes is only with a view to avoid any possibility of the supplier raising any demand at a later stage on the ground that certain duties are to be paid. The expression rates are inclusive of all duties and taxes have to be understood as applicable to only duties and taxes which are payable. The Tribunal held in the above mentioned case that there is no unjust enrichment and the appellants would be entitled to obtain refund. The ratio of the above case is clearly applicable here. In the present case also, the sale price, no doubt, includes all statutory levies payable. That means, after some time the seller should not come to the buyer for extra amounts on the plea that further duty has to be paid to the Department. The presumption that the sale price includes duty erroneously paid in excess has no basis. More precisely, the sale price includes only the duty payable. In these circumstances, there is no q....
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....if the duty payable is either reduced or nil. The case laws relied on by the learned JCDR are not relevant. Hence, we allow the appeal with consequential relief." 13. In the recent decision of the Division Bench of the Tribunal in the case of M/s.Monnet International Ltd. & Another vs. CCE, New Delhi by Final Order No.52170-52171/2017 dated 08.03.2017 allowed the appeal on the identical situation. In that case, the assessee was providing liaisoning services to M/s.Dongfeng Electric Corpn., China during the period 01.06.2005 to 31.01.2007. They have deposited the amount of Rs. 93,13,142/- in the first case and Rs. 25,31,125/- in the second case in instalments towards Service Tax on 02.01.2008, they filed refund claim after knowing the fact that the liaisoning services were not subject to Service Tax. The refund claims were rejected by the lower authorities being time barred as per section 11B of the Central Excise Act, 1944. The Tribunal allowed the appeals filed by the assessee. It has been held as under:- "14. After considering the various case laws on the subject which are discussed in the above paragraphs, we come to the conclusion that Section 11B generally governs ....