AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1454
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppearing on behalf of the appellant submits that the issue has been settled by this Tribunal vide Final Order No. 50597-50599 of 2025 dated 06.05.2025, therefore, they are entitled to claim interest on delayed refund @ 12%. 4. On the other hand, the learned AR opposes the contention of the learned consultant for the appellant and submitted that the provisions of Central Excise Act are applicable to the facts of this case. To support of his contention, he relied upon the decision of the Madhya Pradesh High Court in the case of MDP Infra (India) Private Limited vs. Commissioner of Customs, Central Excise & Central Goods, Service Tax reported as 2019 (29) G.S.T.L. 296 (M.P) which has been affirmed by the Hon'ble Apex Court reported in 2021 (48) G.S.T.L. J49 (S.C.). He also relied on the decision of the Hon'ble Supreme Court in the case of Collector of Central Excise, Chandigarh vs. Doaba Co-operative Sugar Mills reported as 1988 (37) ELT 478 (S.C.). 5. Heard the parties and considered the submissions. 6. The decisions relied upon the learned AR is not applicable to the facts of this case as in the case of MDP Infra (India) Private Limited (supra), the exemption was granted retros....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2004-CE dated 01.03.2004. Consequently, they filed refund claim of duty paid. In the said case, it was held that interest is payable @ 6% and refund claim under Section 11B of the Act which is not the case in hand. In this case, appellant paid the service tax by mistake and which was not payable by the appellant. Therefore, the decision in the case of Triumph International (India) Pvt. Ltd. (supra) is not applicable to the facts of this case. Further, in the case of Dinesh Tobacco Industries Ltd. (supra), it is the case that the assessee claim refund of the central excise duty paid under compounded levy scheme on the goods which were exported and they were entitled for rebate of duty paid on goods exported which is not the case in hand. Further, Revenue is relied on the decision of the Hon'ble High Court of Delhi in the case of S.S. Automotive Ltd. (supra), in the said case the respondent themselves has conceded the claim of said interest. Further, in the case of D.D. International Pvt. Ltd. (supra), a refund claim was sanctioned under Section 129EE of the Customs Act. In that circumstances, the Hon'ble High Court held that the interest is payable @ 6%, I find that whether the prov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 the High Court or the Supreme Court, and as soon as the assessee came to know of the judgment (within the period of limitation), he initiated action for refund of the tax paid by him, due to mistake of law. After referring several judgments and provisions of Section 11A & 11B of Central Excise Act, at paragraph 137 of the said judgment, their Lordships have concluded as under : "137. Applying the law laid down in the decisions aforesaid, it is not possible to conclude that any and every claim for refund of illegal/unauthorized levy of tax can be made only in accordance with the provisions of the Act (Rule 11, Section 11B etc. as the case may be), and an action by way of suit or writ petition under Article 226 will not be maintainable under any circumstances. An action by way of suit or a petition under Article 226 of the constitution is maintainable to assail the levy or order which is illegal, void or unauthorized or with....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ding the document 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." 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 appellant, the very fact that said amounts are paid as service tax under Finance Act, 1994 and also filing of an application in Form-R of the Central Excise Act would indicate that the applicant was intending to claim refund of the duty with reference to Section 11B, therefore, now it is not open to him to go back and say that it was not refund of duty. No doubt in the present case, Form-R was used by the applicant to claim refund. It is the very case of the petitioner that they were exempted from payment of such service tax by virtue of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uld 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". and the said decision has been upheld by the Hon'ble Apex Court. Further, the Hon'ble High Court of Tripura in the case of Tripura Cricket Association (supra) Hon'ble High Court observed as under :- "4. Learned counsel for the petitioner placed reliance on the judgment rendered by the Hon'ble Karnataka High Court in case of CCE (Appeals) v. KVR Construction [2012] 22 taxmann.com 408/36 STT 33/2012 (26) S.T.R. 195 (Kar.). In the said judgment, the Hon'ble Karnataka High Court came to the conclusion that section 11B of the Central Excise Act was not applicable to a refund application filed by the petitioner based on mistake of law. The Hon'ble Karnataka High Court fairly held that section 35B(1)....