TaxTMI 
TaxTMI 
TaxTMI 
2019 (6) TMI 18
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....they filed refund claim for the period 07.11.2005 to 26.07.2007. The department was of the view that part of the refund claim is hit by limitation under section 11B of the Central Excise Act, 1944 and also that the service tax is paid by the appellant currently therefore they are not eligible for refund. Show-cause notice was issued inter alia proposing to reject the refund claim on the ground of time bar and also on unjust enrichment. After due process of law, the original authority rejected the refund claim holding that the service tax has been rightly paid by the appellant under Survey and Exploration of Mineral Services, that part of the refund claim is hit by time bar and that appellant has not produced evidence to prove that the burde....
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....under section 11B is not applicable. 3. The learned Authorised Representative for the Revenue Shri S. Govindarajan, AC (AR) supported the findings in the impugned order. He submitted that the facts of the present case are different from the issue discussed in the Final Order of the Tribunal in M/s. Mohabir Enterprises (supra). It is submitted by him that the issue whether the said activities are liable to service tax has not be considered in the said Final Order. It is also argued by him that section 11B would apply to all refund matters and, therefore, the rejection of part of the amount on this ground is correct. In this regard, he relied upon the decision in the case of Collector of Central Excise, Chandigarh Vs M/s. Doaba Co-operative....
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....y work consists i. Topographic survey ii. Seismic services iii. Shooting services iv. Experimental work v. Uphole surveys vi. Shallow refraction Survey 12. SHOT HOLE DRILLING (Y) :- 12.1 The CONTRACTOR shall provide shot holes on all working days as per the specifications and work programme given by the Party Chief. The appellants argue that the definition of "Survey and Exploration of Minerals" as per section 65 (104a) has the following facts : i) It means geological, geophysical or other prospecting ii) Surface or sub-surface surveying iii) map-making service in relation to location or exploration of deposit of mineral, oil or gas." 5. The case of M/s. Mohabir Enterprises (supra), which has been relied up....
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....it was held that the authorities functioning under the Act are bound by the provisions of the Act. The facts being entirely different is not applicable to the case before us. 7. When the amount has been paid wrongly by mistake and when service tax is not leviable on the activity, the amount paid does not take the colour of service tax. If the amount paid which does not the colour of service tax, the same has to be refunded to the claimant subject to the provision of unjust enrichment. That for such refund, the time-limit under section 11B is not applicable. The Hon'ble jurisdictional High Court in the case of 3E Infotech Vs CESTAT, Chennai reported in 2018 (18) G.S.T.L.410 (Mad.) has held as under:- "11. A similar view has been taken by ....
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....spondent in rejecting the refund claim on the ground that it was barred by limitation. We are, therefore, of the view that the impugned order is unsustainable. We accordingly allow the present appeals and quash and set aside the impugned order, insofar as it is against the appellant in both appeals. We fully allow refund of Rs. 8,99,9621/- preferred by the appellant. We direct that the respondent shall refund the amount of Rs. 8,99,962/- to the appellant within a period of three months. There shall be no order as to costs. 12. Further, the claim of the respondent in refusing to return the amount would go against the mandate of Article 265 of the Constitution of India, which provides that no tax shall be levied or collected except by auth....