TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 197
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....t will not apply.? (ii) Whether the ld. Tribunal was justified in holding that the assessee was entitled for refund of Rs. 7,94,490/- on the ground that once an order has already been passed by the ld. Commissioner (Appeals) thereafter the order passed by the ld. Commissioner in Review is not sustainable and that the assessee has satisfactorily provided the necessary evidences for proving its claim of unjust enrichment before the ld. Adjudicating Authority?" 2. The brief facts of the case are that the respondent-M/s Gulshan Chemicals Limited, A-595, Industrial Area, Bhiwadi (hereinafter referred to as the assessee) are engaged in the maunfacture of Sodium Hydro Sulphite falling under Sub Heading No. 28.31 of the schedule to Central Excise Tariff Act, 1985. Filed three refund claims of Rs. 4,98,498 & 5,18,900 & 6,3,729 as they paid service Tax on the whole value of the service instead of 25% value of Service, envisaged in the notification no. 32/2004 - ST dated 3-12-2014 on inward goods transportation. The Adjudication Authority found that out of the claimed refund amount Rs. 7,94,490/- did not come under the limitation clause and Rs. 8,26,637/- was deposited prior to 16-06-2006.....
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....he residential flats sold to them by the builder who paid the service tax on the residential flats. As per the Circular No.108/2/2009-ST, dated 29.1.2009, there was no service tax liability on sale of the residential flats to the appellants. Admittedly, when no service tax was payable by the appellant therefore, they have filed a refund claim. The adjudicating authority sanctioned the refund claim but on appeal by the Revenue, the claim for refund was rejected. Aggrieved by the said order, the appellants are before me. 3. The contention of the appellants is that as they were not required to pay the service tax therefore, the provisions of Section 11B of the Central Excise Act 1944, are not applicable to them. To support his contentions the learned Advocate placed reliance on the decision of the Hon'ble High Court of Karnataka in the case of CCE v. KVR Construction - 2012 (26) S.T.R. 195 (Kar.). 4. On the other hand, the learned A.R. reiterated the findings of the impugned order. 5. Heard both sides and considered the submissions. 6. It is an admitted fact that the appellants were not required to pay service tax but the appellants have paid the service tax erroneously and th....
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....rged in May, 2006. If the refund claim was submitted in the office of the Assistant Commissioner on 28-4-2010, then, it was clearly beyond the period of one year prescribed under Section 11B(1) of the Central Excise Act, 1944. 15. Mr. Desai would submit that an unconstitutional levy is also illegal. If the levy is unconstitutional meaning thereby it is null and void ab initio, then, the judgment in Mafatlal Industries (supra) would permit consideration of an application for refund filed belatedly. Mr. Desai submits that all that the judgment of the Nine Judge Bench holds is that unconstitutional and illegal levies cannot be upheld. In his submission, the predominant consideration while giving relief to the petitioners and applicants who seek refund of the amounts paid pursuant to such levies is that they should not be unjustly enriched. We are of the opinion that the Hon'ble Supreme Court may be considering the issue of validity of the provisions like Section 11B(1) introduced in the Central Excise Act, 1944, but the judgment cannot be applied to such an extent as would enable us to totally override and brush aside a provision like Section 11B with the rule of limitation carv....
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....r refund was made invoking Section 11B of the Central Excise Act, 1944. We have no manner of doubt that when this was the provision invoked, same applies with full force including the rule of limitation prescribed therein. For these reasons, we are of the opinion that the decisions relied upon cannot be of any assistance." and also relied upon in case Jubilant Enterprises P. Ltd. vs. Commissioner of C. Ex. Mumbai, 2014 (35) STR 430 (Tri.- Mumbai), wherein it has been observed as under:- "1. The appellant is in appeal against the impugned order wherein the refund claim has been rejected by the lower authorities holding that same is barred by limitation. 2. The brief facts of the case are that the appellant rented their premises to CESTAT, Mumbai and during the period June 2007 to July 2008, they paid service tax on the rent received under the category of renting of immovable property service. As CESTAT, Mumbai did not pay the service tax to the appellant on the premise that they are seeking clarification from C.B.E. & C. whether they are liable to pay service tax during this period or not. After clarification from the C.B.E. & C. that CESTAT is not required to pay service tax d....
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....s, Excise and Service Tax Appellate Tribunal, New Delhi in Appeal No. E/3422/93-NB-A. 2. We have heard Mr. A.R. Madhav Rao, learned Counsel for the appellant and Mr. K. Radhakrishna, learned Senior Counsel for the respondent. We have perused the orders passed by the lower Authorities and also of the Tribunal. The point raised by the learned Counsel for the appellant is covered by the recent judgment of this Court in Civil Appeal No. 4488 of 2005, Commissioner of Central Excise, Bangalore v. Mysore Electricals Industries Ltd. reported in MANU/SC/8687/2006 : 2006(204)ELT517(SC) . In the said Judgment, this Court held that a beneficial circular has to be applied retrospectively while oppressive circular has to be applied prospectively. Thus, when the circular is against the assessee, they have right to claim enforcement of the same prospectively. 3. In view of the submission made by the learned Counsel for the appellant and also of the judgment of this Court in C.A. No. 4484/05 (supra), the appellant is liable to pay the duty from 29.8.1990 i.e. from the date of issue of the show cause notice and not from 1.3.1990 as ordered by the Tribunal. 4. The Civil Appeal stands allowed on....