AI Drafter 
TaxTMI 
TaxTMI 
2021 (6) TMI 827
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....ated 17.07.2020 issued by the Respondent No.3; B) that this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus, or any other appropriate writ, order or direction directing the Respondent to entertain the refund filed in prescribed FORM RFD-01 online portal for the month of February 2018 and March 2018 for an amount of Rs. 93.54 lacs along with interest at appropriate rate as deemed fit by this Hon'ble Court; C) that this Hon'ble Court be pleased to direct the Respondents, by themselves, their servants and agents, pending the hearing and final disposal of the Petition to sanction the refund claim filed in prescribed FORM RFD-01 online portal for the month of February 2018 and March 2018 for an amount of Rs. 93.54 lacs along with interest for the period February and March 2018 with such terms and conditions as deemed fit by this Hon'ble Court; D) grant ad-interim relief in terms of the prayers above; E) grant costs of the Petition and orders thereon; and F) grant such further and other reliefs, as this Hon'ble Court may deem fit and proper in the nature and circumstances of the case." 2. The writ-ap....
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....vernment to whom the payment was made by mistake must be repaid. The Supreme Court further held that in that respect the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, has power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realized by the Government without the authority of law. 7. Section 54 of the CGST Act is applicable only for claiming refund of any tax paid under the provisions of the CGST Act and/or the GGST Act. The amount collected by the Revenue without the authority of law is not considered as tax collected by them and, therefore, Section 54 is not applicable. In such circumstances, Section 17 of the Limitation Act is the appropriate provision for claiming the refund of the amount paid to the Revenue under mistake of law, which is as under : "Section 17(1) of the Limitation Act, 1963 (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,- (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) *** ....
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.... exercise of powers under section 7 of the Coal Mines Act, is held unlawful. The petitioners shall be entitled to refund of such duty paid only within three years immediately preceding the date of filing of the petition, which happens to be 18.8.2006. Such refund shall be granted to the petitioners with simple interest at the rate of 9% per annum from the date of payment till actual refund, however, only after ascertaining that the burden of such duty was not passed on to consumer or any other person." 9. Similar situation arose in the case of Joshi Technology International vs. Union of India, reported in 2016 (339) ELT 21 (Guj), wherein this Court held that the statutory time limit provided under Section 11B of the Central Excise Act is not applicable to the claim of refund of duty paid under mistake as the same was paid under mistake of law and, therefore, such claim is considered as outside purview of enactment. It was held that general provisions provided under the Limitation Act is applicable to claim refund of such duty. The relevant paragraphs of the decision are given as under : "14.4 Thus, in view of the principles enunciated by the Supreme Court in Salonah Tea....
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.... applying the limitation prescribed under section 11B of the CE Act would not arise. 19 *** TO SUMMARISE:- - Merely because the provisions of the Central Excise Act, 1944 and the rules framed thereunder for collection and refund viz., the machinery provisions have been incorporated in the OID Act for collection and refund of the cess levied thereunder, it cannot be inferred that the Oil Cess imposed under the provisions of the OID Act assumes the character of central excise duty. The finding recorded by the adjudicating authority that the Oil Cess is in the nature of excise duty, is erroneous and contrary to the law laid down by this court in Commissioner v. Sahakari Khand Udyog Mandli Ltd. (supra). - *** - *** - In the facts of the present case, the refund is claimed on the ground that the amount was paid under a mistake of law and such claim being outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. The petitioner was, therefore, justified in filing the present petition before this court against the order passed by the adjudicating authority rejecting its claim for refund of t....
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....id. The authority concerned is also duty bound to refund such amount as retention of such amount would be hit by Article 265 of the Constitution of India which mandates that no tax shall be levied or collected except by authority of law. Since the Education Cess and Secondary and Higher Secondary Education Cess collected from the petitioner is not backed by any authority of law, in view of the provisions of Article 265 of the Constitution, the respondents have no authority to retain the same." 10. Similarly, in the case of 3E Infotech Ltd. vs. CESTAT, reported in 2018 (18) GSTL 410 (Mad.), the Madras High Court held that the service tax paid under mistake of law is to be returned to the assessee irrespective of the period covered under the refund application. It was held that refusing to return the amount would go against the mandate of Article 265 of the Constitution of India. The relevant paragraphs of the decision are as under : "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 authority of law. ....