2021 (10) TMI 1230

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....8. The total service tax liability for the impugned period was Rs. 78,37,359/-. The appellant used their CENVAT credit to the extent of Rs. 16,84,478/- for discharging their service tax liability. The balance outstanding to be paid was Rs. 61,52,881/-. However, instead of paying Rs. 61,52,881/-, the appellant made payment of Rs. 64,58,056/- towards discharging the service tax liability. Thus, there was an excess payment of Rs. 3,05,175/- They filed a refund claim on 29.11.2018 for refund of the excess payment made by them. The original authority rejected the refund claim holding that the tax payment having been made vide challan dated 20.7.2017 and 1.6.2017, the refund claim filed on 29.11.2018 is beyond one year period as prescribed under ....

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....the situation of refund after the introduction of GST was considered. 3. The learned AR Shri R. Rajaraman appeared for the department. 4. Heard both sides. 5. The issue is with regard to rejection of refund claim on the ground that it is barred by limitation. The facts are clear from para 7.1 of the Order in Appeals which is reproduced as under:- "The following undisputed points are discerned from the facts of the case. The ST3 return for the period April 2017 to June 2017, with a service tax liability of Rs. 78,37,359/- was filed by the appellant on 23.10.2018 after a delay of 434 days. While discharging the above liability through cash and credit, the appellant had made an excess payment of Rs. 3,05,175/-. The cash payment made vide ....

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....ith regard to refund of credit on input services. In the present case, the refund arises out of excess payment. The excess payment can be ascertained only when the appellant files the ST-3 returns. When such facts are put into consideration, in strict sense, it cannot be said that there is a delay in filing the refund claim. It is an excess payment made by the appellant. Needless to say that the department cannot retain any amount which is not collected / paid under authority of law. 7. The jurisdictional High Court in the case of 3E Infotech (supra) has categorically held that section 11B cannot be applied when the tax has been paid under mistake and when not required to be paid. The relevant paragraph is as under:- "11. A similar view ....

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....e case of the respondent 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....