TaxTMI 
TaxTMI 
2025 (12) TMI 7
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....grievance of the appellant before me is that in these two cases, they are entitled for interest @ 12% per annum as these are not covered under Section 11B of C.E. Act. Therefore, the provisions of Section 11BB of the Central Excise Act is not applicable to the facts of these cases. 4. On the other hand the submission of the Ld. Authorized Representative is that it is not a case of making payment by way of mistake and amount has been deposited by the appellant during the course of investigation. In that circumstances, the authorities below has rightly paid interest @6% in terms of Section 11BB of the C.E. Act, 1944. Therefore, appeals are required to be dismissed. 5. Heard the parties. Considered the submissions. 6. It is an admitted fact that in these cases the either appellant paid excess tax or tax paid during the course of investigation which could not form the shape of Service Tax. In that circumstances, relying on the decisions of this Tribunal in the case of Meenu Builders Versus Commissioner of Central Excise, Central Goods and Service Tax, Jaipur, (2025) 31 Centax 356 (Tri.-Del) wherein this Tribunal observed as under: "12. Heard the parties, I find that t....
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....#39;ble Apex Court in the case of KVR Constructions Ltd. (supra). Therefore, the said decision of Mafatial Industries Ltd. (supre) is not applicable to the facts of this case and moreover in the said case, the issue was whether exemption was available to the assessee or not and initially it was held that the said exemption is not available to the assessee and the appellant initially claimed for exemption and the said claim was not ineligible to the appellant and thereafter the appellant paid the duty along with interest. Later on, by the decision of the Hon'ble Apex Court in the case of SRF Ltd. it was found that appellant was entitled for exemption under Notification No. 30/2004-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), i....
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....ticle 226 has to be exercised to effectuate the regime of law and not for abrogating it, as the power under Article 226 is conceived to serve the ends of law and not to transgress them. At paragraph 113 of the said judgment, they classify the various refund claims into three groups or categories: (a) The levy is unconstitutional-outside the provisions of the (1) Act or not contemplated by the Act. (b) The levy is based on misconstruction of wrong or erroneous (11) 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, (c) 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. ....
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....r regarding maintainability of the Writ Petition, as first we have to look to the provisions of 11B of the Act and then decide whether Section 11B is applicable to the facts of the case as finding thereon would have bearing for considering the issue of maintainability of Writ Petition. Section 11B of the Central Excise Act reads as under: "11B. Claims for refund of duty (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant. Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including 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 with....
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....ty to levy and collect such amount. Therefore, it would go beyond their purview to collect such amount. When once there is lack of authority to collect such service tax by the appellant, it 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. 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 ....
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....ected to take up the appeal and dispose of the same within a period of 2(two) months from the date of communication of the copy of this order to the authorities concerned. It is further clarified that pendency of the Vidarbha Cricket Association case before the Hon'ble Supreme Court may or may not be of relevance that the law as it stands as on date and the issue having been confirmed by the Hon'ble Supreme Court in the KVR Construction (supra) vis-a-vis the issue of limitation, we find no justifiable ground for the Commissioner of Central Tax (Appeals) to remit the case to the 'Call Book'. Hence, necessary immediate direction be given to return the file from the Call Book' and take up the matter immediately and dispose of the same within the time as directed hereinabove" 8. On going through the above judicial pronouncement of the case laws relied upon by both the sides, I am of the considered view that it is admitted fact that appellant had paid service tax by mistake which is not payable at all and same shall be treated as Revenue deposit not service tax paid by the appellant. Therefore, the provision of Section 11B of the Act is not applicable. The s....