TaxTMI 
TaxTMI 
2024 (6) TMI 505
X X X X Extracts X X X X
X X X X Extracts X X X X
....2015 to 31.03.2016 2015-16 5,03,39,066/- 2. 01.04.2016 to 31.03.2017 2016-17 4,35,61,218/- 3. 01.04.2017 to 31.03.2018 2017-18 82,56,361/- 4. 02.02.2021 03.03.2021 01.04.2011 to 31.03.2012 2011-12 1,74,72,827/- 5 01.04.2012 to 31.03.2013 2012-13 1,83,15,785/- 6. 01.04.2013 to 31.03.2014 2013-14 1,93,18,216/- 7. 01.04.2014 to 31.03.2015 2014-15 1,82,43,330/- 8. 01.04.2007 to 31.03.2008 2007-08 91,81,154/- 9. 01.04.2008 to 31.03.2009 2008-09 1,07,72,272/- 10. 01.04.2009 to 31.03.2010 2009-10 98,79,438/- 11. 01.04.2010 to 31.03.2011 2010-11 1,00,65,085/- Total 21,54,04,752/- 4. The refund applications were made pursuant to the decision of the Supreme Court in the case of State of West Bengal Vs. Calcutta Club Limited 2019 (29)GSTL 545 (SC) , where it was held that clubs were not required to pay VAT and Service Tax on the principle of mutuality. 5. Show cause notice dated 25.02.2021 and 19.03.2021 were issued to the appellant that the refund applications filed by them were barred by time under the provis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the one-year limitation period in Section 11B of the Central Excise Act is taken to be applicable to the appellant's case, the date on which the mistake was discovered should be the starting point of limitation. Gujarat High Court in Indo-Nippon Chemicals Co.Ltd. Vs. Union of India 2005 (185) ELT 19 (Gujarat) has held that sub-section (2) of Section 29 of the Limitation Act provides that the provision of Section 4 to 24 (which includes Section 17) shall apply to special law in so far as and to the extent to which they are not expressly excluded by such special law. There is no such exclusion in Central Excise Act. Accordingly, the Court held that the limitation period will start when the mistake was discovered. The Supreme Court in Assistant Commissioner Vs. Indo- Nippon Chemicals Co. Ltd. 2005 (186) ELT A-117 (SC) dismissed the SLP against the said order. 8. Ms. Jaya Kumari, learned Authorised Representative for the respondent mainly relied on the decision of the Supreme Court in the case of ITC Ltd. Vs. Commissioner of Central Excise, Kolkata 2019 (368) ELT 216 (SC) to say that the refund applications are not maintainable unless and until the final order of assessment is challen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....has been taken note of by the Authorities below and hence we find no justification in the objection raised by the learned Counsel for the appellant. Accordingly, the objection is rejected. 11. In support of our decision, we would like to rely on the decision in the case of Shiv Naresh Sports Ltd. Vs. Commissioner, Service Tax, Delhi-III 2022 (6) TMI 916 -CESTAT-New Delhi , where this Tribunal agreed with the submission of the Authorised Representative that the issue regarding absence of challenge to self-assessment by the appellant in the light of the decision of the Apex Court in ITC Ltd. (supra), though was not raised earlier but being a legal issue, the same can be raised. In Asstt. Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Limited 2008 (230) ELT 385 (SC) , the Apex Court considered the issue, 'whether non-consideration of a decision of Jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a "mistake apparent from the record" and held that both the Tribunal and the High Court were right in holding that such a mistake can be said to be a "mistake apparent from the record" which could be re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....case of Collector of Central Excise versus Flock India Private Ltd. 2000 (120) ELT 285 (SC) a case under Central Excise Act. Later, in the case of ITC Limited (supra), the issue considered was whether the refund could be sanctioned without challenging the self assessment and it was conclusively held that all assessments, including self assessments are appealable and therefore, unless the same is modified, no refund could be sanctioned so as to alter the assessment on the principle that refund proceedings are in the nature of execution proceedings and they cannot be used to determine the liabilities of the parties. The relevant para from the decision in ITC Limited (supra) is as under:- "44. The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of selfassessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or reassessment proceedings at all. Apart from that, there are other....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he observations of Delhi High Court in B.T. (India) Pvt. Ltd. (supra) is quoted below:- "66. In our considered view, unless the self-assessed return, as submitted had been questioned, re-opened or re-assessed and the assertion of the petitioner of the services rendered by it qualifying as an "export of service‟ questioned or negatived in accordance with the procedure prescribed under the Act, its claim for refund could not have been negated. As was observed by the Supreme Court in ITC Limited, a self-assessed return also amounts to an „assessment‟ and unless it is varied or modified in accordance with the procedure prescribed under the relevant statute, the same cannot possibly be questioned in refund proceedings. As the Supreme Court had held in the decisions aforenoted, the authority while considering an application for grant of refund neither sits in appeal nor is it entitled to review an assessment deemed to have been made. In fact, the Supreme Court in ITC Limited had described refund proceedings to be akin to execution proceedings. 14. Keeping in view, the dictum laid down in the judicial pronouncements referred above, this Tribunal in the case of M/s. K....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion proceedings, the present refund claim by the appellant is not maintainable without challenging the assessment. 17. Another aspect on maintainability of the refund claims by the appellant on the basis of the judgement of the Apex Court in Calcutta Club Limited (supra), where they were not party requires consideration with reference to the decision of the Apex Court in Mafatlal Industries Ltd. Vs. Union of India 1997 (89) ELT 247 (SC). The question was framed in paragraph 22 of the judgement as follows:- "22. There is as yet a third and an equally important category. It is this : a manufacturer (let us call him "X") pays duty either without protest or after registering his protest. It may also be a case where he disputes the levy and fights it out up to first Appellate or second Appellate/Revisional level and gives up the fight, being unsuccessful therein. It may also be a case where he approaches the High Court too, remains unsuccessful and gives up the fight. He pays the duty demanded or it is recovered from him, as the case may be. In other words, so far as `X' is concerned, the levy of duty becomes final and his claim that the duty is not leviable is finally rejected. But....