AI Drafter 
TaxTMI 
TaxTMI 
2023 (5) TMI 95
X X X X Extracts X X X X
X X X X Extracts X X X X
....-in-Original Nos. 8/2015-ST(AC); No.25 & 26/2014-15/ST(ADC) and No.05/2016-ST(AC), where demands were confirmed for Rs.5,97,306 + Rs.92,410/- penalty under Section 76, 77 and 78; Rs.2,83,729/- + late fee Rs.25,900 and penalty under Section 76 and 77; Rs.3,33,971/-, late fee of Rs.19,000/- and penalty under Section 76 and 77. The Appellants filed appeals against the above Orders-in-Original and the Commissioner (Appeals) vide Order-in-Appeal No.TVM-EXCUS-000-APP-157 to 159-16-17 dated 11.11.2016 while deciding the twin issues i.e., (i) whether it is the appellant is required to pay service tax on the total amount collected from the students, or whether they are to pay service tax on only the amounts they receive from NIFE, which is 80% of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....had no relevance. The Commissioner (Appeals) rejected their claim stating that the amounts paid in excess on his own account, the relevant date would be the date of payment of tax and accordingly, rejected the refund claims. Appellant claims that on the one hand, department compelled him to pay more than what he was liable to pay and now, since the Commissioner (Appeals) order is in his favour they rejected the refund claims on the ground that he volunteered and paid in excess. He submits that since the department admits that the sums paid by him was not towards any taxable service it definitely falls into the category of unauthorised collection of tax. He also submitted that it is a settled law that the issue of limitation does not arise i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he appellant himself. The DR also submits that it was a mistake on their part, hence, the relevant date should be taken as the date of payment of duty which is one year from the date of remitting of the amount through their challans dated 5.4.2014 and 11.9.2015. 5. Having heard both sides in detail and on perusal of all the records, the limited question to be decided is what will be relevant date for filing the refund claims. Section 11B of Central Excise Act, 1944 reads as : "11B. Claim for refund of duty.- (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the0 [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of on....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or any court, the date of such judgment, decree, order or direction;] (f) in any other case, the date of payment of duty.] As seen above the two instances that squarely apply in this case is either the date of Commissioner Appeals order as is stated at clause (ec) of Section 11B or the date of payment of duty as per clause (f) of Section 11B. 5.1 If the amounts were to be considered as the tax amounts, then clearly the amounts collected by the department are liable to be refunded since the demands are set aside. But since the commissioner Appeals held that the excess amounts paid by the appellant are over and above the tax liability one has to see whether Section 11B is applicable at all. Section 11B clause (f) comes into pla....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... been thus observed that what one has to see is whether the amount paid by the assessee under a mistaken notion was refundable. Mere payment made by the assessee will neither validate the nature of payment nor the nature of transaction. The same could not make it a service tax. When there is a lack of authority to collect such service tax not liable to be paid by the assessee, it would not give the department the authority to retain the amount paid by the assessee. Therefore, mere nomenclature would not be an embargo on the right of the petitioner to demand refund of payment made under a mistaken notion. This judgment has been confirmed by the Hon'ble Apex Court dismissing the appeal filed by the Revenue. Having regard to the facts and circ....