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2017 (5) TMI 455
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.... of Revenue but only collected by the department of Revenue in terms of those Acts. 2. The ld.Advocates appearing on behalf of the appellants argued the matter at length and submitted written submissions with case laws. On the other hand, the ld.AR for Revenue reiterated the findings of the ld.Commissioner (Appeals). 3. Heard both sides and perused the appeal records. 4. I find that both the authorities below rejected the refund claims on the ground of time bar and unjust enrichment. It is observed that the refund claims filed beyond the time limit of one year are hit by section 11B of Central Excise Act, 1944. 5.1 Brief facts of the cases are that the appellants are engaged in the manufacture of tea falling under Chapter 09 to the First Schedule of Central Excise Tariff Act, 1985. In case of M/s Orangajuli Tea Garden, the refund claim of Rs. 98,310/- was submitted and in case of M/s Nonai Para Tea Garden, the refund claim of Rs. 1,42,736/- was submitted as per Board s Circular No.978/2/2014-CX dated 07.01.2014. 5.2 Show-cause notices were issued proposing as to why the refund claims of Rs. 98,310/- & Rs. 1,42,736/- respectively shall not be rejected on the ground th....
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....t are only collected by the Department of Revenue in terms of those Acts." 6. The ld.Counsels appearing on behalf of the appellants strongly relied upon the recent decision of the Hon'ble Gujarat High Court in case of Joshi Technologies International v. UOI [2016 (339) ELT 21(Guj.)]. In that case, the petitioner was paying Cess on the clearance of Petroleum/crude oil under the provisions of OIL Industry (Development) Act, 1974. The petitioner filed a letter dated 17.07.2014 requesting for refund of the amount of Rs. 73,60,061/- paid on Education Cess and Secondary & High Education Cess inadvertently during the period July, 2004 to April, 2014. Refund Claim was filed in terms of the Board s Circular dated 07.01.2014 (which is applicable in the present appeals). By the impugned order dated 24.11.2014, the second respondent rejected the entire refund claim under the provisions of Section 11B of the Central Excise Act, 1944, which was challenged before the Hon'ble High Court. The refund claim was rejected on the ground of limitation as well as unjust enrichment. The Hon'ble High Court quashed the Adjudication order and allowed the Refund claim made vide application dated 17.07.2014.....
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....s and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Education Cess on excisable goods as they apply in relation to the levy and collection of the duties of excise on such goods under the Central Excise Act, 1944 or the rules, as the case may be. Secondary 138. And Higher Education Cess on excisable goods. The Secondary and Higher Education - (1) Cess levied under Section 136, in the case of goods specified in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Secondary and Higher Education Cess on excisable goods), at the rate of one per cent calculated on the aggregate of all duties of excise (including special duty of excise or any other duty of excise but excluding Education Cess chargeable under Section 93 of the Finance (No. 2) Act, 2004 (23 of 2004) and Secondary and Higher Education Cess on excisable goods) which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue), under the provisions of the Central Excise Act, 1944 (1 of 1944) or under any other....
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....e, for the purpose of levy of Education Cess and Secondary and Higher Secondary Education Cess, two other conditions precedent, are required to be satisfied, viz., (i) that the duty of excise should be levied by the Central Government in the Ministry of Finance (Department of Revenue); and (ii) the duty of excise should be collected by the Central Government in the Ministry of Finance (Department of Revenue). In the present case, since the machinery provisions of the Central Excise Act, 1944 and the rules framed thereunder have been incorporated in the OID Act, the second condition precedent is satisfied, viz. that the cess is collected by the Central Government in the Ministry of Finance (Department of Revenue); however, the first condition with regard to levy of such duty of excise by the Central Government in the Ministry of Finance (Department of Revenue) is not satisfied inasmuch as the oil cess under the OID Act is levied by the Ministry of Petroleum and Natural Gas. In the aforesaid premises, the requirements of Section 93 of the Finance Act, 2004 and Section 138 of the Finance Act, 2007 are not satisfied in the present case, and consequently, the said provisions have no app....
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....f law and not under Section 11B of the Central Excise Act, 1944. 13.The next question that needs to be addressed is the aspect of limitation. The refund application has been made in July, 2014 seeking refund of the amount paid for the period July, 2004 to April, 2014. On behalf of the revenue it has been contended that in view of the provisions of Section 11B of the CE Act, the limitation for filing the refund claim would be before the expiry of one year from the relevant date. The expression relevant date is defined under clause (B) of the Explanation to Section 11B of CE Act and insofar as the present case is concerned would be the date of payment of duty. However, as discussed hereinabove, the provisions of Section 11B of the Act would not apply to the claim of refund made by the petitioner. Consequently, the limitation prescribed under the said provision would also not be applicable. 14.It has been further contended on behalf of the revenue, that in case the limitation prescribed under Section 11B of the CE Act is not applicable, the general principles of limitation would apply and the limitation of three years for filing a suit would apply, whereas on behalf ....
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....d respondent. Since the period of limitation begins to run only from the time when the applicant comes to know of the mistake, the application made by the petitioner was well within the prescribed period of limitation. Moreover, as discussed hereinabove, the retention of the Education Cess and Secondary and Higher Secondary Education Cess by the respondents is without authority of law and hence, in the light of the decision of this court in Swastik Sanitarywares Ltd. v. Union of India (supra), the question of applying the limitation prescribed under Section 11B of the CE Act would not arise. * * * * * * * * * * * * * * 16. The claim of refund made by the petitioner to the extent the same was within the period of limitation has been turned down by the adjudicating authority on the ground of unjust enrichment. The adjudicating authority has held that the petitioner was required to file the refund claim under the provisions of Section 11B of the Central Excise Act, 1944 along with the documentary evidences as provided under Section 12A. According to the adjudicating authority, two basic requirements are to be complied with based on documentary evidences (i) the amoun....
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.... record i.e. balance sheet, from which the veracity of the said statement could be verified. The above said certificates itself does not have any evidential value, unless the contents of them are supported by documentary evidence." * * * * * * * * * * * * * * 17.3 In the opinion of this court having regard to the price clause contained in the Crude Offtake and Sales Agreement and the certificate of the Chartered Accountant and the documents referred to hereinabove, more particularly, the certificate dated 29-7-2015 issued by IOCL, the above decision of the Supreme Court would be squarely applicable to the facts of the present case. Thus, from the certificate issued by the IOCL, it is evident that the IOCL which is the sole customer, has certified that it has not paid any Education Cess and/or Secondary and Higher Secondary Education Cess on the OID cess to the petitioner in view of the fact that the price paid for crude purchased by it from the petitioner is fixed solely on the basis of the international price of crude as traded in the international market and the burden of cess and royalty payable to Government of India is on the seller. In the impugned order, th....
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....ied upon the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. v. UOI [1997 (89) ELT 247 (SC)]. The ld.A.R. in his written submission while distinguishing the decision of the Hon'ble Gujarat High Court submitted as under:- "1.24 It is respectfully submitted that the Hon'ble Supreme Court judgement in the Mafatlal case was not cited before the Hon le Gujarat High Court, and for this reason, it has come to a conclusion contrary to the Hon'ble Supreme Court judgment. If the Hon'ble Gujarat High Court s holding is accepted, then its natural consequences have also to be accepted. So, it has to be accepted that when excise duty is not payable, it would cease to be excise duty, and S. 11B would not be applicable for its refund. But this leads to a direct conflict with the mafatlal judgment, which says that in case of illegal levy, the only remedy is provided by Section 11B. Even otherwise, as has been noted hereinabove, some other High Courts, including the Hon'ble Gujarat High Court itself in Bajaj Foods , have taken a different view. * * * * * * * * * * * * * * * 1.26 The appellants have relied upon the Hind Agro judgment where the ....
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....y of the very application filed under Section 11B of the Central Excise Act and whether Sec. 11 applies to the facts of the present case at all. In the case of Mafatlal Industries Ltd. v. Union of India (supra), the question was with regard to the refund of Central Excise and Customs Duties. It was held that all claims except where levy is held to be unconstitutional, is to be preferred and adjudicated upon under Section 11B of the Central Excise Act, 1944 or under Section 27 of the Customs Act, 1962 and subject to claimant establishing that burden of duty has not been passed on to a third party. In such circumstances, it was held, no civil suit for refund of duty is maintainable. It also observes that writ jurisdiction of High Courts under Article 226 and of Supreme Court under Article 32 remains unaffected by the provisions of Section 11B of the Act. It was further held that concerned Court while exercising the jurisdiction under the said articles, will have due regard to the legislative intent manifested by the provisions of the Act and the writ petition would naturally be considered and disposed of in the light of the provisions of Section 11B of the Act. It has been held there....
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....8 (37) E.L.T. 487 (S.C.) = 1988 Supp. SCC 683]; Escorts Ltd. v. Union of India & Ors. [1994 Supp (3) SCC 86] Rule 11 before and after amendment, or Section 11B cannot affect Section 72 of the Contract Act or the provisions of Limitation Act in such situations. My answer to the claims for refund broadly falling under the three groups of categories enumerated in paragraph 6 of this judgment is as follows : Where the levy is unconstitutional outside the category (I) provisions of the Act or not contemplated by the Act - In such cases, the jurisdiction of the civil courts is not barred. The aggrieved party can invoke Section 72 of the Contract Act, file a suit or a petition under Article 226 of the Constitution and pray for appropriate relief inclusive of refund within the period of limitation provided by the appropriate law. (Dulabhai s case (supra) para 32 clauses (3) and (4)." * * * * * * * * * * 24. The learned Counsel for the appellant has also contended that when the order of refund was rejected, the respondent could have approached this Court instead of filing the appeal choosing a wrong forum, could not be a deficit coming in the way to claim....
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....thi Constructions (supra), the respondents were the recipient of the Goods Transport Agency service and in that case they have claimed abatement. In the case of Jumax Foam Pvt. Ltd. (supra), the appellants filed the refund claim of the excess Service Tax paid by them. In such a situation, the facts are not similar to this case. In the case of Hexacom (I) Ltd. v. Commissioner of Central Excise, Jaipur 2006 (3) S.T.R. 131 (Tribunal) = 2003 (156) E.L.T. 357 (Tri.-Del.), this Tribunal has held that if any amounts are collected erroneously as representing service tax, which is not in force, there is no bar to return of such amounts. Further, in the case of CCE, Jaipur-I v. Jai Laxmi Finance Co. 2006 (3) S.T.R. 25 (Tri.-Del.), this Tribunal had again held that the amount collected without authority of law, the assessee is eligible for refund. In this case also, prior to 1-5-2006, the provisions of Service Tax were not applicable on the respondents and the amount paid as Service Tax was not payable by them at all. In that situation, the provisions of Section 11B of Central Excise Act, 1944 extended to the Service Tax are not applicable to this case. Hence, the bar of limitation is not app....
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.... not leviable. Consequently, in terms of the law laid down by the Hon'ble Kerala High Court (supra), the Government will have no authority to retain the said amount and will have to be refunded. 16. It may also be mentioned that in the case of Hind Agro Industries Limited (supra), we find that the Hon'ble Delhi High Court has circumscribed the above view by prescribing the period of three years, after discovery of the mistake, for claiming such refund. 17. Thus, we are of the view that in the instant case, the amount deposited by the assessee-Appellants without any authority of law cannot be considered as Service Tax. As per Article 265 of the Constitution, no tax can be collected without any authority of law. At the relevant time, there was no authority of law to collect Service Tax on the activity carried out by the assessee-Appellants. Hence, Section 11B of the Central Excise Act, 1944 is not applicable. The amount was deposited in the year 2006-07 and the refund was filed on 02nd January, 2008. Hence, the claim has been made within the period of three years prescribed by Hon ble Delhi High Court. Therefore, we are of the view that the assessee-Appellants are e....