TaxTMI 
TaxTMI 
2025 (7) TMI 1138
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....nt challan could not be generated, the accountant acting under bona fide mistake that service tax was not deposited, again deposited the amount of Rs.20,00,000/-. As a result, the Appellant has deposited service tax two times inadvertently by mistake, vide challan numbers '00068' and '03149' dated both 03.07.2017 i.e. on same day. That on 03.08.2017 the Appellant after realizing the above mistake filed GST TRAN-1 form for taking the credit of excess amount deposited. However, on 03.02.2019, the Deputy Commissioner CGST & Central Excise Division-I, Lucknow vide its letter has informed that the credit of excess payment made by the Appellant is not eligible as transitional credit as per Section 140 to 142 of CGST Act, 2017 and rules made there under. The Appellant was asked to deposit an amount equivalent of credit so availed. Acting upon such instructions, the Appellant deposited the amount in cash to the exchequer on 09.09.2019. On 04.10.2019 the Appellant submitted a refund claim in Form-R for refund of the excess payment made. The same was returned to the Appellant vide deficiency memo dated 26.11.2020. On 24.12.2020 the Appellant resubmitted the refund claim in Form-R in triplica....
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....that the said credit is available with them in their ITC. In view of the above, case of refund claim does not arise as the credit is available with them since the time it was taken as ITC after implementation of GST, Act. The appellant cannot claim refund of any credit which is available with them. Allowing, refund in cash of a credit available with the appellant will amount to double payment to the appellant and will be loss to Government Exchequer. 5. In view of the above, it is humbly prayed that the present appeal may be dismissed." 4. Heard both the sides and perused the appeal records. 5. I find that by inadvertent mistake of the Accountant an amount of Rs.20,00,000/- was deposited twice vide Challan Nos.'00068' and '03149' and both dated 03.07.2017 i.e. on the same day. Since the amount was paid by mistake by the Appellant, thus, it will be treated as deposit, ipso facto are entitled for refund. Further limitation under Section 11B will not be applicable as the amount deposited is not tax and, at best, revenue deposit. I find support from the judgement of the Hon'ble High Court of Madras in the case of M/s 3E Infotech vs. CCE, (Appeals-I) Madurai 2018-TIOL-1268-HC-MAD-S....
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....ssessee 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." 6. The only moot controversy to be decided herein therefore is: Whether the statutory time prescribed under section 118 shall be applicable to the amount erroneously deposited by the appellant despite having no liability to deposit the same. 7. For the purpose it is necessary to look into the provisions of Section 11B reads as follows:- "Section 11B: Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date in such form as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person: Provided that where an application for refund has been made before t....
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....proviso to subsection (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its reassembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done there under. (5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2), Including any such notification approved or modified under sub- section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette."] Explanation.- For the purposes of this section,- (A)" refund" includes rebate of duty of excise on excisable goods exported o....
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....ing may act as an embark on the right of the Appellant to demand refund of payment made by them under the mistaken notion. The issue has been dealt by Hon'ble Supreme Court in the case of Mafatlal Industries vs. CCE reported as 1997 (89) E.L.T. 247 SC. It has been held that one has to see whether the amount claimed is unconstitutional and outside the provisions of Section 11B of the Act. In paragraph 113 of the said judgment My Lords have classified various refund claims into three groups or categories as follows:- i. The levy is unconstitutional-outside the provisions of the (1) Act or not contemplated by the Act. ii. The levy is based on misconstruction or wrong or erroneous (II) Interpretation of the relevant provisions of the Act, Rules or Notifications: or by failure to follow the vital or fundamental provisions of the Act or by acting in violation of the fundamental principles of judicial procedure. iii. Mistake of law the levy or Imposition was (III) unconstitutional or illegal or not exigible in law (without jurisdiction) and, so found in a proceeding Initiated not by the particular assessee, but in a proceeding Initiated by some other assessee either by t....
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....his case also, the question arose was what is the relevant date of commencement of period of limitation for the purpose of Section 11B and it was held that it could be the date of payment. The decision further clarified that the amounts paid under mistaken notion since cannot be considered as duty of excise, therefore, bar of limitation under Section 11B cannot be applied and the limitation on this provision would not come in way of any person claiming refund of the amount which was not his liability. Similar decision has been given by the Division Bench of this Tribunal in the case of Motorola India Ltd. vs. CCE reported as 2006 (206) E.L.T. 90 Kar. The Principal Bench of this Tribunal also in the case of Oriental Insurance Company Ltd. Vs. CCE reported as 2020 (1) TMI 324 while laying emphasis upon the decision of the Delhi High Court in the case of M/s National Institute of Public Finance and Policy vs. Commissioner of Service Tax 2019 (20) G.S.T.L. 330 (Del.) has held that if service tax was not leviable but it was paid by mistake the amount has to be refunded to the assessee. It was held that the distinguishing feature for attracting the provision under Section 118 is that the....