2018 (6) TMI 1217

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....lant submitted that service tax would be attracted only when the construction of a new building or civil work etc. is used/or to be used, occupied/to be occupied/engaged/to be engaged primarily in commerce or industry. The said two constructions undertaken by them to the M.G. University was neither for commerce nor for business purpose and hence the service tax which was remitted inadvertently was eligible to be refunded. The BSNL has been paying service tax along with part bills to the appellant and subsequently the appellant remitted the service tax collected to the Department. Thereafter a show-cause notice dt. 21/05/2013 was issued to the appellant and after following the due process, the Asst. Commissioner vide order dt. 15/11/2013 rejected the claim by holding that by virtue of Section 11B of Central Excise Act and as per Section 83 of the Finance Act, the refund claim is not entertainable and is barred by limitation as well as on account of unjust enrichment. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) who also rejected the appeal. Hence the present appeal. 3. Heard both sides and perused records. 4.1. Learned counsel for the appell....

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....s 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 case, the Apex Court elaborately classified claim for refund into three groups or categories, vis-a-vis, (i) unconstitutional levy, (ii) illegal levy, and (iii) mistake of law, and held that the remedies involved in all the three categories are the remedies provided under the Excise and Customs Act None of the above categories would attract to the case in hand. In this case, the levy was purely on account of mistake of fact in understanding the law. The petitioner assumed that the transaction for which he has paid tax, is covered under the law. The law does not cover such transaction for payment of Service Tax. Therefore, it is not on account of any mistake of law but mistake of fact the Service Tax was paid. In that view of the matter it has no colour of tax for the purpose of levy by the Department. The distinguishing feature for attracting the provisions under Section 11B is that the levy should have the colour of validity when ....

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....ces Pvt Ltd. Vs. CST, Delhi [2017(5) GSTL 291 (Tri. Del.)] iv. Rajasthan State Mines & Minerals Ltd. Vs. CCE, Jaipur-1 [2017(50) STR 183 (Tri. Del.)] 6.1 After considering the submissions of both sides and perusal of the material on record and the various judgments relied upon by both the parties, I find that the appellant has paid the service tax and later on realized that service tax is not leviable and thereafter filed the refund application. The appellant has filed the refund application under Section 11B as that is the only provision which deals with refund of any amount refundable to a person. Section 11B is applicable in the case of service tax matters by virtue of Section 83 of the Finance Act, 1994 In my view, since the amount claimed as refund by the appellant can be refunded only under Section 11B, the limitation provided in the said section shall also be applicable for sanction of refund. There is no other provision for refund of service tax/excise duty except Section 11B of the Act. Therefore, limitation is applicable. The Division Bench of this Tribunal in the case of LNG Security Services Pvt. Ltd. cited supra has examined the applicability of Section 11B of the CE....

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....of India. The Hon'ble High Court held that the amount paid by the patty has no colour of tax. However, in the present case we are dealing the claim of refund of amount which was duly paid as service tax, later asserted to be not payable. We are dealing with a statutory appeal of the assessee within the ambit of Finance Act, 1994 9. In Joshi Technologies International, Inc. - India Projects (SCA No. 2556 of 2015 decided on 16-6-2016) [2016 (339) E.L.T 21 (Guj.), the Hon'ble Gujarat High Court was examining refund of education cess paid under a mistake of law, The Hon'ble High Court was considering Special Civil Application filed challenging the original order of rejection of claim. It was observed that the claim for amount paid under a mistake of law being outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. The Hon'ble High Court held that the petitioner is justified in filing the petition before the Court against original order. 10. In Natraj and Venkat Associates V. Asstt Commr. of ST, Chennai-II reported in 2010 (249) E.L.T. 337. The Hon'ble Madras High Court was exercising powers under writ jurisdiction. ....