2019 (4) TMI 481

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....at the appellant is registered under reverse charge as service recipient for discharging the liability of taxable service as that of transport of goods/goods transport agency service. The appellant received the goods transport service for carriage of agricultural produce and deposited the service tax of Rs. 73,552/-. However, on acquiring the knowledge about Notification No.3/13-ST dated 01.03.2013 exempting the services provided by goods transport agency for agricultural produce w.e.f. 01.04.2013 that the refund claim for the aforesaid service tax was filed on 15.03.2016. The said refund claim was wholly rejected while the Order-in-Original No. 5858 dated 18.07.2016. Being aggrieved thereof, the appeals were filed by the appellants, which ....

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....llan was deposited under the category of transport of goods by road and (2) That the refund is filed beyond a period of one year form the relevant date in accordance of Section 11B of Central Excise Act. Commissioner (Appeals) while adjudicating the appeals though has set aside the aforesaid first ground, however, have rejected the appeals as being time barred in view of Section 11B of Central Excise Act. Impressing upon that Section 11B is not applicable to the appellants, who was actually not liable to pay the duty. The order under challenge is prayed to be set aside. 5. While rebutting these arguments, ld. DR has placed reliance upon para 8.4.2 of the order that there was no evidence brought by the appellant to substantiate the claim ....

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....or the period of 2013-14 got deposited by the appellant under the mistake of law and the moment this mistake came to his notice that he filed the refund claim. In the given circumstances, I am of the opinion that the Department for any reason cannot be allowed to retain an amount, which the Department was not liable to recover. 6.3 Just as an assessee cannot be permitted to evade payment of rightful tax, the authority which recovers the tax without any authority of law cannot be permitted to retain the said amount merely because the tax payer was not aware at the time that the recovery being made was without any authority of law. In such cases, there is an obligation on the part of the authority to refund the excess tax recovered from the ....

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....he two decisions of the Division Bench of this Court in Hindustan Cocoa (Supra) and Commissioner of Central Excise, Nagpur V/s. M/s. SGR Infratech Ltd. (Supra) are squarely applicable to the facts of the present case." 6.5 Thus, the issue is no more res-integra. These decisions have clearly held that the limitation period prescribed under Section 11 B of the Central Excise Act is not applicable to the refund claims for service tax paid under mistake of law. As the Section 11 B is applicable only qua the deposit of duty of excise and where the amount is deposited under mistake i.e. due to non-leviability or exemption, the said payment cannot be clothed with the description of duty of excise. Hence, I am of the opinion that Commissioner (Ap....