TaxTMI 
TaxTMI 
2025 (10) TMI 261
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....on following submissions:- 2.1 The revenue has retained the amount of Rs. 1,81,621/- unjustifiably because admittedly, there was no liability to pay this amount towards any service tax liability for the relevant period. The amounts were paid through challan only because of clerical mistake on the part of the appellant's employee and therefore, the department had no authority in law to retain the amounts paid by mistake. In this regard, the appellant has relied upon decisions which are submitted by way of paper book. The appellant submits that 11B of the Act has been applied wrongly by the department to deny refund to the appellant because 11B of the Act would apply only in cases where duty has been paid and refunded. In the present case, the appellant paid these amounts due to mistake and it was not payable towards any service tax. Thus, the time limit prescribed under 11B would not apply to the facts of the present case. The appellant submits that when the lower authorities have accepted that the amounts paid by the appellant were paid under mistake, there is no question of collecting the same amount from any buyers and therefore, the question of unjust enrichment does not aris....
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....ice tax matters as per Section 83 to Chapter V of The Finance Act, 1994 4.2 Commissioner (Appeals) has relied on the following: that Hon'ble CESTAT in the case of Valson Polyester Ltd. Vs Commissioner of Central Excise, Daman (2011(274) ELT 444 (Tri-Ahmd) emphatically observed that even in case of refund of PLA balance provisions of 11B of Central Excise Act, 1944 would apply. Relevant part of the said judgement is reproduced below: 2. The main contention of the appellant is that since the amount lying in balance of PLA has not been utilized towards payment of duty, it would remain only as a deposit for which there is no time limit for claiming refund. 3. I am unable to appreciate the contention of the appellants that the amounts lying in the PLA are not duty but deposits not covered under Section 11B. The appellants themselves have agreed that the amounts were credited in the PLA were based on deposit made through TR-6 challans where the head of deposit was clearly shown as AED (T & TA). Therefore the provisions of Section 11B are clearly attracted. Section 11B of Central Excise Act, 1944 reads as below: "Any person claiming refund of any duty of e....
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.... Hon'ble Court in that case was convinced that the petitioner has not passed on the burden to the consumers and it rejected the department's contention of maintainability on the ground of alternate remedy as the matter being beyond the scope of Central Excise Act. It is thus clear that the matter being beyond levy and not of legal duty was considered by Hon'ble High Court in the writ jurisdiction as the same could not be relegated to the statutory authorities. In UPL Ltd. Vs. Union of India as reported in 2022 (379) ELT 183(Guj.) in which case double amount of Customs duty for same goods was paid due to oversight and under bona fide mistake, the Hon'ble Court after observing that the claim for refund was made in less than two years from the date of Customs duty and after considering decision of Joshi Technologies International as well as Comsol Energy Pvt. Ltd. V/s. State of Gujarat as reported in 2021(55) GSTL 390 (Guj.) decided that since twice payment of Customs Duty was involved which was paid by mistake, therefore, refund of the same when applied for within two years was allowable. In that case, the duty by mistake was paid twice. The wrongful duty was therefore, sought to be ....
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....cannot be construed as 'mere deposit' in the hands of the Government and provisions of Section 11B of the Central Excise Act, 1944 are applicable. In the instant case, this Court finds that application for refund for wrongful entries made between two sister concern by the common accountant was made after a period of five years, same is well beyond the limitation period of Section 11B is not disputed, however, the question is whether same is allowable as contended by the assessee having been claimed beyond period of limitation has provided in Section 11B or not. This Court finds that there have been conflicting judgments as above. However, the common thread that can be drawn from all the above decisions is that the "duty" if wrong amount is paid as duty in the Government exchequer or paid twice then the provisions of Section 11B will come into play and the limitation contained therein shall apply. However, if there is only wrongful deposit made and such deposit is claimed or proved to be not as per law, then in an in that case, the statutory authorities cannot consider such claim if beyond Section 11B and the same has to be considered by Courts or the Hon'ble High Courts as per law ....