2017 (8) TMI 264

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....g authority rejected refund claims on the ground of time bar and unjust enrichment. By the impugned order, the Commissioner(Appeals) upheld the adjudication order. 2. Heard both sides and perused the appeal records. 3. The main contention of the ld.Counsel for the appellant is that they paid the Education Cess and Secondary and High Education Cess on the Cess by mistake and the department collected the Cess without the authority of law which was accepted by C.B.E.C. s Circular No.978/2/2014-CX dated 07.01.2014. The ld.Counsel relied upon the decision of the Hon'ble Karnataka High Court in the case of Commissioner of C.Ex., Bangalore-III v. Motorola India Pvt.Ltd. [2006 (206) E.L.T. 90 (Kar.)] and Geojit BNP Paribas Financial Services ....

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....y 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 the claim for refund of duty and interest paid on such duty. The Section has been made applicable for service tax also. In the case of KVR Constructions (supra), the Hon'ble Kerala High Court has laid down yardsticks to decide those cases where Section 11B may not be applicable in service tax cases. The Hon'ble High Court has held that, if there is no authority to collect service tax by the dep....

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....ed by Hon?ble Delhi High Court. Therefore, we are of the view that the assessee-Appellants are entitled to get the refund and the same is not hit by the limitation prescribed under Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. 18. Moreover, it may be mentioned that the Department should not take advantage of the ignorance of the assessee-Appellants as per the ratio laid down in the case of Parekh Brothers vs CIT, 150 ITR 105 Kerala; and CIT vs Maha Laxmi Sugar Mills, 160 ITR 920 SC. 19. In the instant case, we are of the view that it is not a case of refund of tax, but return of deposit for which limitation (Section 11B of the Act) is not applicable. Hence, we set aside the impu....