TaxTMI 
TaxTMI 
2017 (10) TMI 794
X X X X Extracts X X X X
X X X X Extracts X X X X
....ered by Department/Ministries other than Ministry of Finance, Department of Revenue, but only collected by the Department of Revenue in terms of those acts. The said refund claims are as follows:- SR. NO. PARTY APPEAL NO. REFUND AMOUNT (RS.) PERIOD 1. M/s.SBW UDYOG LIMITED RAMCHANDRAPUR, POST-JASEDIH,DIST.-DEOGHAR(JHARKHAND)-814142 E/75348/2016 6,15,378/- 01.08.2004 TO 31.03.2014 2. M/s.SBW UDYOG LIMITED BALLAVPUR, DHULIYAN ROAD, DIST. PAKUR (JHARKHAND)-816107 E/75345/2016 13,16,174/- 01.08.2004 TO 06.1.2014 3. M/s.SBW UDYOG LIMITED BAIJNATHPUR, POST-JASEDIH, DIST.-DEOGHAR (JHARKHAND)-814112 E/75349/2016 5,41,353/- 01.08.2004 TO 31.03.2014 4. M/s.SBW UDYOG LIMITED /SHYAM BIRI WORKS LIMITED, RATANPUR, POST-BARHARWA, DISTT.-SAHIBGANJ JHARKHAND-816101 E/75346/2016 11,92,116/- 01.08.2004 TO 06.1.2014 5. M/s.SBW UDYOG LIMITED PASIA, POST-MADHUPUR, DIST.-DEOGHAR (JHARKHAND)-815353 E/75347/2016 6,66,862/- 01.08.2004 TO 31.03.2014 SR. NO. PARTY APPEAL NO. REFUND AMOUNT (RS.) PERIOD 1. M/s.SBW UDYOG LIMITED GIDHOUR, POST-GIDHOUR, DIST.-JAMUI (BIHAR)-811305 E/....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he relevant portion of the said Circular is reproduced below:- "Attention is invited to Circular No.345/2/2004-TRU (Pt.) dated 10th August, 2004, in which it was clarified that the Education Cess chargeable under Section 93(1) of the Finance (No.2) Act, 2004 is to be calculated by taking into account only such duties which are both levied and collected by the Department of Revenue. 2. Representations have been received from trade and filed formations seeking clarification as to whether the Education Cess chargeable under Section 93(1) of the Finance (No.2) Act, 2004 and the Secondary and Higher Education Cess chargeable under Section 138(1) of the Finance Act, 2007 should be calculated taking into account the cesses which are collected by the Department of Revenue but levied under an Act which is administered by different departments such as Sugar Cess levied under Sugar Cess Act, 1982, Tea Cess levied under Tea Act, 1953 etc. 3. The matter has been examined. A cess levied under an Act which is not administered by Ministry of Finance (Department of Revenue) but only collected by Department of Revenue under the provisions of that Act cannot be treated as a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....judgements in Salonah Tea and U.P.Pollution Control Board despite noting that in those cases levy was without the authority of law. It is submitted that the cess Act, referred to in the Hind Agro case, borrowed the provisions of the Customs Act relating to levy and collection, including refund and exemption, but this fact was not brought to the notice of the Hon'ble Court. It is also submitted that no other High Court, whose judgements have been cited by both sides in these appeals, including the Gujarat High Court in Joshi Technologies strongly relied upon by the appellants, has refused to apply the Mafatlal judgement on this ground." 9. I am unable to accept the contention of the ld.A.R. for the Revenue for the reason that the Tribunal has no authority to discard the decision of the Hon'ble High Court on the identical issue as contrary to the Hon'ble Supreme Court. In the judicial discipline, the Hon'ble Supreme Court has authority to pass remarks on the decision of the High Court. I find that the ld.A.R. had not disputed that the facts of the present case are similar to the case of Joshi Technologies International v. UOI (supra). In any event, the Hon'ble Karnataka High....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction 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. 10. The Tribunal in the case of Jubilant Enterprises Pvt.Ltd. v. CCE, Mumbai-I [2014 (35) ELT STR 430 (Tri.-Mum.) has held as under :- 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. 7. In these circumstances, I hold that the appellant are entitled for refund claim as filed in time and the provisions of Section 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 12. 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 ....