2018 (12) TMI 381

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....,741/- on 01.06.2017 on the ground that they have erroneously paid the said amount of service tax on transportation of said agricultural produce/ food grains under reverse charge mechanism as the same was exempted as per Notification No. 25/2012-ST dated 20.06.2012. The said Notification was amended vide Notification No. 03/2013 dated 01.03.2013 requiring no service tax to be payable on transportation of agricultural produce/ food grains however the said refund claim was rejected on the following grounds: (a) Time barred (b) Non bifurcation of tax in proportion to agricultural produce (c) Non producing of the evidence qua non availment of credit (d) Not producing the transport documents. Being aggrieved, the Appeal was preferred which ....

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.... 3. Ld. DR, Mr. P.R. Gupta while justifying the Order has impressed upon that the refund claim is beyond one year and thus has rightly been rejected. 4. After hearing both the parties, the considered opinion of mine is as follows: First and foremost it has to be adjudicated as to whether the appellant was rightly claiming the exemption of Notification 25/2012-ST dated 20.06.2012. It is observed that the said Notification grants exemption to the services provided by a goods transportation agency by way of transport in goods carriage of agricultural produce. Section 65B(5) of Service Tax Act, 1994 defines agricultural produce to mean any produce of agriculture on which either no further processing is done as is usually done by a cultivator....

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....eof vide its subsequent Notification No. 06/2015 of 01.03.2015. The exemption existing qua agricultural produce, food grains, food stuffs, fruits, vegetables, eggs, milk, pulses, etc. was got substituted for the food stuffs including flour, tea, coffee, jaggery, sugar, milk products, salt and edible oil excluding alcoholic beverages. The Notification as exist on date is found to be mere explanatory in nature without extending the scope of initial Notification and perusal makes it clear that the intention of Notification is not at all to distinguish the products as that of sooji or atta of any food grains. As already discussed above there is no difference between the two products. Processing involved for deriving them is same i.e. grinding. ....

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....discussed above, the product of the appellant was exempted under a Notification of the Department. The amount paid by him was therefore not a statutory levy but was made under mistake of law. Hon'ble Apex Court in the case Mafatlal Industries Ltd. and others Vs. Union of India 1997 Volume 5 SCC 536 has classified the claim of refund into three groups of categories: (i) Unconstitutional levy (ii) Illegal levy (iii) Mistake of Law In that case, Section 11B of CEA was made applicable on the ground that the petitioner in that case has committed mistake of fact in understanding the Law as he assumed that the transaction for which he has paid tax is covered under law. In the present case, it is not the mistake of fact but the mistake of law t....