TaxTMI 
TaxTMI 
2024 (1) TMI 890
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....fication No.30/2012-ST dated 20.06.2012 was issued providing that 50% of the service tax liability shall be paid by the Body Corporate receiving the services under the Works Contract from inter alia Association of Persons(AOP). In terms of the said notification for the financial year 2012-2013 to 2013-2014, ONGC paid 50% of the service tax liability under Reverse Charge considering the appellant to be an AOP. The appellant also paid 100% of the service tax liability amounting to Rs.10,80,68,227/-'under protest' considering it otherwise. This led to the deposit of 150% of the service tax with the Department. The appellant made a representation on 16.06.2015 and also a reminder dated 31.07.2015 to the Commissioner for clarification of service tax liability in case of Consortium. But as no response was received, a Writ Petition No.3782/2017 was filed in the High Court of Delhi seeking direction that the department may decide the tax liability and refund the excess amount on the basis that the tax has been collected by the Department without authority of law. The Department filed its reply to the Writ Petition, taking a preliminary objection that instead of filing the Writ Petition, th....
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....provisions of Section 11B of the Act. It is further their case that the said payment of tax is in consequence of appellant's own commercial delay, disputes and mis-understanding with ONGC rather than any mistake of law or error on the part of the Departmental Authorities or as a result of any unauthorized levy or collection of tax without the authority of law. 6. Having heard both the sides and perused the records of the case, we find that the issues raised in the present appeal are as follows:- "(i) What would be the 'relevant date' in the present case for computing the period of limitation in terms of Section 11B of the Central Excise Act? (ii) Whether the instant refund application is barred by limitation under the provisions of the Central Excise Act? (iii) Whether the excess tax deposited by the appellant is without any authority of law?" 7. Before considering the issue on merits, it is necessary to reproduce the provisions of Section 11B of the Act : "Section 11B. Claim for refund of duty and interest, if any, paid on such duty . - (1) Any person claiming refund of any 1[duty of excise and interest, if any, paid on such duty]....
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....ation issued, under this Act; (d) the duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person; (f) the duty of excise borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty has not been passed on by the persons concerned to any other person." Explanation B(ec) and (f)- "[(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;] (f) in any other case, the date of payment of duty." 8. The issue no.(i) and (ii) being linked with each other we will consider them together. The term "relevant date" has been given extended meaning covering various eventualities. From the ar....
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....not an inflexible rule." 9. In the present case if the department had not contested the writ petition taking a preliminary objection about the proper remedy of filing an application for refund, the High Court would have considered the prayer in the writ petition on merits and in the event the same being decided in favour of the appellant, he would have been entitle to claim refund of the duty. We find it relevant to refer to the decision of the Karnataka High Court in Commissioner of Central Excise Vs. KVR Construction - 2012 (26) STR 195, where the Department had objected to the maintainability of the writ petition against the rejection of the refund applications as there was alternate remedy of filing an appeal under the statute, the High Court held that writ petition could not be rejected on the ground of alternative remedy. So the "relevant date" in this case would be the date of the order of the High Court, i.e.12.12.2017 and not from the date of payment of tax as claimed by the revenue under Clause(f). The application for refund was filed by the appellant on 12.03.2018, i.e., within three months from the date of the order of the High Court and the same being before t....
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....ST- 2022 (9) TMI 844 - CESTAT-HYDERABAD, where there was a difference of opinion between the two members regarding the application of limitation under Section 11B for the purpose of refund, the matter was referred to the Third Member who opined that if an amount is paid under a mistaken notion as it was not required to be paid towards any duty or tax, the limitation prescribed under Section 11B of the Act would not be applicable. In this case, the Member (Judicial) had relied on the decision of the Karnataka High Court in KVR Construction - 2012(26) STR 195, which was affirmed by the Supreme Court vide order dated 11.07.2011 by dismissing the Department's Appeal - 2018 (14) GSTL J17. 13. We may now consider the decision of the Principal Bench in Oriental Insurance Company Ltd versus Commissioner of Central Excise and Service Tax, New Delhi - 2022 (75) GSTR 44 (CESTAT - DELHI), where the Tribunal after discussing the entire case law and referring to the decisions of the various High Courts - M/s National Institute of Public Finance & Policy Vs. CST - 2019 (20) GSTL 330 (Del.), Commissioner of Central, Excise, (Appeals), Bangalore versus KVR Construction - 2012 (26) STR 195 ....
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....pon inquiry, it was informed by CBEC on 13-4-2009 that its activities were not taxable. Soon thereafter, it sought refund of the amounts deposited. The Deputy Commissioner refunded part of the amount but disallowed refund of Rs. 11,49,090/- on the ground that the application was filed after a lapse of period of one year. The Assessee unsuccessfully filed an appeal to CESTAT which appears to have relied upon the judgment of the Supreme Court in Collector of Central Excise, Chandigarh v. Doaba Co-operative Sugar Mills, 1988 (37) E.L.T. 478 (S.C.)." 5. Counsel for the assessee contends that when the amount in question was never payable as there was no levy at all, the question of denying the refund of part payment did not arise and that the general principal of limitation will be applicable from the date of discovery of mistaken payment in the present case. So the refund claim is made within the stipulated period of the limitation. 6. ......Relying upon the said judgment, it is submitted (by the Revenue) that the refund claim before a departmental authority is to be made within the four corners of the statute and the period of limitation prescribed in the Centr....
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....ly observed that just as an assessee cannot be permitted to evade payment of rightful tax, the Authority which recovers tax without any authority of law cannot be permitted to retain the amount merely because the tax payer was not aware at that time that the recovery being made was without any authority of law. 17. In the present case, the appellant had sought for the amount paid in excess to the 100% duty paid under mistake that they were liable to pay the same as per the existing statute, but for the notification issued subsequently, whereby the duty was apportioned 50:50 between the service recipient and the service provider, has not been disputed by the Revenue. It would be relevant to consider the following paras from the decision of the Karnataka High Court in KVR Construction (supra):- "18. From the reading of the above Section, it refers to claim for refund of duty of excise only, it does not refer to any other amounts collected without authority of law. In the case on hand, admittedly, the amount sought for as refund was the amount paid under mistaken notion which even according to the department was not liable to be paid. 19. According to the a....
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....t 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. xxxxxx xxxxxx xxxxxx 23. Now we are faced with a similar situation where the claim of the respondent/assessee is on the ground that they have paid the amount by mistake and therefore they are entitled for the refund of the said amount. If we consider this payment as service tax and duty payable, automatically, Section 11B would be applicable. When once there was no compulsion or duty cast to pay this service tax, the amount of Rs. 1,23,96,948/- paid by petitioner under mistaken notion, would not be a duty or "service tax" payable in law. Therefore, once it is not payable in law there was no authority for the department to retain such amount. By any stretch of imagination, it will not amount to duty of excise to attract Section 11B. Therefore, it is outside the purview of Section 11B of the Act." 18. Thus the consistent view of the various High Courts of Delhi, Karnataka, Kerala, Madras, Mum....
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....al Order dated 8.10.2015 set aside the Order-in- Original holding that the services classifiable under the category of "Works Contract" became taxable service only after 1.06.2007. In terms of the order of the Tribunal, the appellant on 13.10.2016 filed the refund application for a sum of Rs.52,59,040/- deposited towards interest (as the service tax amount was already recovered from the service receivers). That almost after three years, the Department issued show cause notice dated 27.04.2020 saying that the refund application is time barred under Section 11B of the Act. The Adjudicating Authority rejected the refund application on the ground of limitation as the refund application was filed on 13.10.2016, which is after the period of one year of the order of the Tribunal dated 8.10.2015. The appeal filed by the appellant was also rejected by the Commissioner (Appeals). Being aggrieved, the appellant has filed the present appeal before this Tribunal. 22. Referring to the provisions of Section 37C of the Central Excise Act, as applicable to the Finance Act, 1994, the learned Counsel for the appellant submitted that the period of limitation needs to be reckoned from the date....
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....he memo of Appeals as well as from the synopsis filed by the appellant that the order of the Tribunal dated 8.10.2015 was signed only on 26.10.2015 and further received by the appellant on 2.11.2015 and therefore it is the date of receipt of the order from which the limitation shall be computed and if so the refund application is within the prescribed period of one year. We are afraid that the date of communication/receipt of the order is not relevant in the present case as clause (ec) of Explanation to Section 11B uses the expression "from the date of such judgment, decree, order or direction", unlike the provisions of appeal under Section 35 and 35A which says that any person aggrieved by any decision or order may appeal within 60 days or three months as the case may be, from the date on which the order sought to be appealed against is communicated. In the later case of filing an appeal, the relevant date for computing the limitation period is the date on which the order is communicated to the party or he receives the order. There is vast difference in the wording of Section 11B Explanation Clause (ec) which makes the date of such order as the relevant date. We do not find ....