TaxTMI 
TaxTMI 
2026 (3) TMI 1314
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.... certain months from January 2017 onwards, the Appellant paid service tax without adjusting the previously paid Service Tax in the previous tax periods (December 2016 onwards). Consequently, the appellant paid the service tax in excess of the amount required to be paid. Further in addition to the above, the Appellant had discharged excess payment in cash in the months of March 2017 and April 2017 to the tune of Rs.23,30,533/-. Such excess payment of tax made in the months of March and April 2017 was not adjusted for the discharging the liability of any future months. The Appellant filed a refund application in 'Form R' dated 09.01.2020 amounting to Rs.2,93,72,118/- (Rs.2,70,41,585/- + Rs.23,30,533/-). On scrutiny of the said claim, the Department opined that the refund claim was time barred. Further, the appellant had not submitted any documents to establish the non utilization of such excess tax paid. A Show Cause Notice dated 30.04.2020 was issued to the Appellant. 2.1 The Assistant Commissioner vide Order-in-Original No.13/2023-24 dated 14.02.2024 rejected the refund claim on the ground that refund claim filed was beyond time limit of one year prescribed under Section....
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....tute of Public Finance and Policy Vs Commissioner of Service Tax, New Delhi [2017 TIOL 4385 CESTAT DEL] (ii) Commissioner of Central Excise (Appeals), Bangalore v. KVR Construction [MANU/KA/1770/2010: 2012 (26) S.T.R 195 (Kar.)] (iii) Joshi Technologies International, Inc-India Projects Vs Union of India [2016 TIOL 1240HC AHM CX] (iv) Oriental Insurance Company Limited us. Commissioner of Central Excise & Service Tax, New Delhi [2020 TIOL 293 CESTAT Del] (v) Parijat Construction v. Commissioner Excise, Nashik [2018 (359) E.L.T. 113 (Bom.)] (vi) Veer Over Seas Limited [2018 (15) GSTL 59 (Tri-LB; Sujaya D. Alva Vs. Commr. of C. Ex. & Service Tax, Mangaluru 2019 (28) G.S.T.L. 196 (Kar.)] and (vii) JP Biscuits Pvt Ltd Vs C.C.E. & S.T.-Surat-I [2022-VIL-519-CESTAT-AHM-ST]. 3.2 Learned counsel contended that similar refund of excess payment of service tax had been adjudicated and sanctioned by the Maharashtra Appellate Authorities. He submitted that similar refund i.e. refund on account of excess payment of service tax had been adjudicated and sanctioned by the Maharashtra Appellate Authorities in Appellant's Mumbai service tax....
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....colour of tax. He relied on the judgement of Commissioner of Sales Tax, U.P. v. Auraiya Chamber of Commerce, Allahabad [1986(25) E.L.T. 867(S.C.)] where the Hon'ble Supreme Court held that "no tax shall be levied or collected except by authority of law. "He contended that this issue was no longer res integra, as is held by the Hon'ble Supreme Court in the case of Salonah Tea Company Ltd. V. Superintendent of Taxes [2002 TIOL 504 SC CT] M/S Monnet International Ltd Vs CCE, New Delhi [2017 TIOL 1023 CESTAT DEL] Javed Akhtar v CCGST, Mumbai West [TS-496-CESTAT-2021 (Mum)-ST] Heavy Engineering Corporation Ltd. v. Union of India [2004 (167) ELT 396. (Cal.)] Indian Oil Corporation Ltd. v. CCE., New Delhi [2010(256) ELT 232 (P&H)] and Indo Rama Synthetics (India) Ltd. v Union of India [2002 (143) ELT 299 (Tri-Del.)] 3.4 Learned counsel relied on Rule 3 of Point of Taxation Rules, 2011 which provided that service provider was liable to pay tax at the time of raising the invoice or the date on which payment is received, whichever was earlier. In the instant case, the Appellant had paid the tax on accrual basis in the months December 2016 to May 2017 i.e. service tax discharged at the....
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....ded that as per the facts on record in the appeal memorandum, revision of Service Lax return for the said period was not done. He placed reliance upon the following case laws: (i) ITC Ltd. vs Commissioner of Central Excise, Kolkata-VI [2019 (368) E.L.T. 216 (S.C.)] (ii) BT (India) Pvt. Ltd. vs. Union of India [MANU/DE/7485/2023] (iii) M/s Jagdambha Phosphates vs. Commissioner of CGST, Udaipur [2024 (10) TMI 1547 - CESTAT NEW DELHI] 5. We have heard the learned counsel for the appellant and the learned authorized representative for the Department and perused the records. 6. In order to appreciate the submissions, it would be pertinent to reproduce Section 11B of the Central Excise Act, 1944. In this context, we note that Section 83 of Chapter V of the Finance Act, 1994 governing the matters of service tax, inter alia, provide that legal provisions under Section 11B governing refund of Central Excise shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise. In order to appreciate the issues under dispute, the specific legal provisions of Section 11B of the Central Excise Act, 1944 are extracted given belo....
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....le as the tax was paid erroneously though eligible to exemption and as such is in the nature of deposit and hence limitation is not attracted as held by Member (Judicial) following the ruling of Hon'ble Karnataka High Court in KVR Construction affirmed by Hon'ble Supreme Court 2018(14)STR J17. The reference is accordingly, answered in the following manner: "The limitation prescribed under section 11B of the Excise Act would not be applicable if an amount is paid under a mistaken notion as it was not required to be paid towards any duty/tax." 14. The above decision of the CESTAT, which is based on the third member reference Bench's decision, amounts to LB decision on the issue. The decision of this Final Order is squarely applicable to the acts of the present case. Therefore, it is held that in the present case the provisions of Section 11B (time limit) would not be applicable." 6.2 The issue of excess payment of duty/tax, has also been examined by the High Court of Gujarat in the case of Swastik Sanitary Wares Limited [SCA No.4676 of 2004 dated 29.08.2012] taking into account the judgement of the Supreme Court in Mafatlal Industries [(1997) 5 SCC(536)] and it w....
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....cised to effectuate the rule of law and not for abrogating it." 6.3. Similarly, we note that in the case of Commr. of C. E. (Appeals), Bangalore Vs. KVR Construction [2012 (26) STR 195 (Kar.)] the High Court of Karnataka held as under:- "22. In the case of Commissioner of Central Excise, Bangalore v. Motorola India Pvt. Ltd. (supra), the Division Bench of this Court considered similar issue. It was a case where excess amount was paid over duty under Central Excise Act on the direction of the Department. There was an application for refund of amount and the same came to be rejected by the Assistant Commissioner on the ground of lapse of time. It was confirmed by both the Appellate Authority and also the Tribunal. Aggrieved by the order of the Tribunal, revenue came up before the High Court. Their lordships of the Division Bench held that order of the Tribunal to allow the claim on the basis that amount paid by mistake cannot be termed as duty in the said case was justified and therefore applying the law laid down in the decision of Apex Court in the case of India Cements Ltd. v. Collector of Central Excise - 1989 (41) E.L.T. 358, dismissed the appeal. 23. Now we....