TaxTMI 
TaxTMI 
2022 (9) TMI 854
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....on Limited, which was squarely covered under the Negative list of services on which no service tax was payable. Section 66D of the Finance Act, 1994 prescribes the negative list of services which inter-alia includes "(v) Loading, unloading, packing, storage, or warehousing of agricultural procedure". The wrong payment on aforesaid services came to the knowledge of the Appellant when the client disputed the charging of service tax on warehousing services provided for storage of food grains. 2.2 The Appellant after taking note of the exclusion from service tax levy applied for refund. The Ld. Assistant Commissioner disputed the said refund claim and issued Show Cause Notice dated 19.11.2019 wherein it was alleged that the said refund claim was barred by limitation of time under Section 11B of the Central Excise Act, 1944, as made applicable for service tax refund. The Appellant submitted that the question of limitation would not apply in their case since the tax was paid under the mistake of law. However, the Ld. Assistant Commissioner rejected the refund claim by holding that the refund claim was clearly barred by limitation of time of one year as prescribed under Section 11B. ....
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....ovisions of Section 11B at length and has also considered the judgement of Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. vs. Union of India 1997 (89) E.L.T. 247 (S.C.). The relevant portion of the judgement is reproduced herein below: "17. If this Court ultimately concludes that Section 11B of the Act is applicable to the facts of the present case, then, the argument of the learned Counsel for the appellant that Writ Petition was not maintainable would merit consideration. Therefore, at this stage, we will not consider the matter regarding maintainability of the Writ Petition, as first we have to look to the provisions of 11B of the Act and then decide whether Section 11B is applicable to the facts of the case as finding thereon would have bearing for considering the issue of maintainability of Writ Petition. Section 11B of the Central Excise Act reads as under : "11B. Claims for refund of duty : (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such....
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....e department had no authority to demand service tax from the respondent because of its circular dated 17-9-2004, the payment made by the respondent company would not partake the character of "service tax" liable to be paid by them. Therefore, mere payment made by the respondent will neither validate the nature of payment nor the nature of transaction. In other words, mere payment of amount would not make it a "service tax" payable by them. When once there is lack of authority to demand "service tax" from the respondent company, the department lacks authority to levy and collect such amount. Therefore, it would go beyond their purview to collect such amount. When once there is lack of authority to collect such service tax by the appellant, it would not give them the authority to retain the amount paid by the petitioner, which was initially not payable by them. Therefore, mere nomenclature will not be an embargo on the right of the petitioner to demand refund of payment made by them under mistaken notion...." 8. I find that the Hon'ble High Court of Bombay in the case of Parijat Construction Vs. Commissioner of Central Excise, Nashik [2018 (359) ELT 113 (Bom.)], had held that the ....
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.... 265 of Constitution of India. The relevant paragraphs are reproduced below : "9. In the above cited case, the Supreme Court stated that the Assessee's claim to refund would not be disallowed solely because it seemed barred by limitation. Since the Assessee in that case made the claim for refund shortly after learning about their entitlement for the same, it would not be just to hold that such claim is hit by laches. 10. ......................... 11. ......................... 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. 13. On an analysis of the precedents cited above, we are of the opinion, that when service tax is paid by mistake a claim for refund cannot be barred by limitation, merely because the period of limitation under Section 11B had expired. Such a position would be contrary to the law laid down by the Hon'ble Apex Court, and therefore we have no hesitation in holding that the claim of the Assessee for a sum of Rs. 4,39,683/- cannot be barred b....
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....gh eligible to exemption and as such is in the nature of deposit and hence limitation is not attracted as held by Member (Judicial) following the ruling of Hon'ble Karnataka High Court in KVR Construction affirmed by Hon'ble Supreme Court 2018(14) STR J17. OR Limitation prescribed under section11B is applicable as held by Member (Technical) in view of the ruling of Hon'ble Supreme Court in Mafatlal Industries Vs. Union of India - 1997 (89) ELT 247." The Third Member has expressed his opinion as follows: 39. The reference is accordingly, answered in the following manner : "The limitation prescribed under section 11B of the Excise Act would not be applicable if an amount is paid under a mistaken notion as it was not required to be paid towards any duty/tax." In terms of the opinion expressed by the Learned Third Member, this appeal stands allowed in favour of the appellant assessee. The appellant assesse shall be allowed grant of refund along with interest, as per rules. Appeal allowed. Impugned order is set aside." 12. I find that in similar circumstances, the Hon'ble Calcutta High Court in the case of Parimal Ray v. Commissioner of....