TaxTMI 
TaxTMI 
2026 (1) TMI 1144
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....sessable value of goods imported. Adhering to Entry 10 of RCM Notification No. 10/2017-Integrated tax (Rate) dated 28.07.2017, the petitioner had paid GST for freight services on reverse charge mechanism. Consequentially, availed credit in Form GSTR-3B of respective months. 4. While placing reliance on the judgment of this Court in the case of Mohit Minerals Pvt. Ltd vs. Union of India, [2020 (33) G.S.T.L. 321 (Guj.)], the petitioner filed the refund application under Section 54 of the Central Goods and Service Tax Act, 2017 (hereinafter referred to as 'CGST Act, 2017) of the IGST paid on ocean freight on reverse charge basis. 5. On receipt of the refund application, initially the adjudicating authority issued show-cause notices dated 3.11.2020 and 6.11.2020, proposing to reject the refund application. Ultimately, it culminated into proceedings before the appellate authority, which remanded the matter back to the adjudicating authority vide order dated 07.12.2020 passed in Order-in-Appeal No.147 to 160/22-23 dated 18.11.2022. Again the petitioner submitted refund application on 16.12.2022 for an amount of Rs. 83,74,751.64. The respondent No.3 issued a show-cause notice to the....
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...., which was filed assailing the order dated 08.02.2023, the appellate authority has directed the adjudicating authority to process the refund application of the petitioner and also to verify the admissibility of the refund claim in respect of period of limitation. 12. At this stage, upon noticing the facts of the judgment of the Comsol Energy Pvt. Ltd. (supra), we find that the case of the petitioner is also covered. In the case of Comsol Energy Pvt. Ltd. (supra), the petitioner filed the refund application Form RFD-01 on-line on month of February, 2018 and March, 2018, after the judgment of this Court in case of Mohit Minerals Pvt. Ltd. (supra), which was decided on 23.01.2020. Since the refund was not allowed, Comsol Energy Pvt. Ltd. filed a writ petition, which was ultimately allowed by the Coordinate Bench of this Court by considering the array of the judgments. One of the judgments is regarding Joshi Technologies International vs. Union of India, 2016 (339) E.L.T 21 (Guj). The relevant observations made by this Court in the case of Comsol Energy Pvt. Ltd. (supra) are as under: "9. Similar situation arose in the case of Joshi Technology International vs. Union of In....
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....bout its mistake and in July 2014, it filed the application for refund before the second respondent. Since the period of limitation begins to run only from the time when the applicant comes to know of the mistake, the application made by the petitioner was well within the prescribed period of limitation. Moreover, as discussed hereinabove, the retention of the Education Cess and Secondary and Higher Secondary Education Cess by the respondents is without authority of law and hence, in the light of the decision of this court in Swastik Sanitarywares Ltd. v. Union of India (supra), the question of applying the limitation prescribed under section 11B of the CE Act would not arise. 19 xx xx xx TO SUMMARISE:- - Merely because the provisions of the Central Excise Act, 1944 and the rules framed thereunder for collection and refund viz., the machinery provisions have been incorporated in the OID Act for collection and refund of the cess levied thereunder, it cannot be inferred that the Oil Cess imposed under the provisions of the OID Act assumes the character of central excise duty. The finding recorded by the adjudicating authority that the Oil Cess is in the nat....
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....ver, since the very retention of the Education Cess and Secondary and Higher Secondary Education Cess by the respondents is without authority of law, in the light of the decision of this court in Swastik Sanitarywares Ltd. v. Union of India (supra), the question of applying the limitation prescribed under section 11B of the CE Act would not arise. - Even in case where any amount is paid by way of self assessment, in the event any amount has been paid by mistake or through ignorance, it is always open to the assessee to bring it to the notice of the authority concerned and claim refund of the amount wrongly paid. The authority concerned is also duty bound to refund such amount as retention of such amount would be hit by Article 265 of the Constitution of India which mandates that no tax shall be levied or collected except by authority of law. Since the Education Cess and Secondary and Higher Secondary DejaVu Serif Education Cess collected from the petitioner is not backed by any authority of law, in view of the provisions of Article 265 of the Constitution, the respondents have no authority to retain the same." xx xx xx 11. The issue is squarely covered by....