TaxTMI 
TaxTMI 
2026 (6) TMI 1061
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....f are that M/s. Ashirwad Palace Building Maintenance, Ashirwad Palace, Bhatar, Surat filed a refund claim of Rs. 71,55,508/- consequent upon the order passed by the Commissioner (Appeals) vide Order-in-Appeal No. SUR-EXCUS-001-APP-124/2014-15 dated 30th September, 2014. The Adjudicating Authority passed the refund claim of Service Tax amount of Rs. 36,11,179/- as per the provisions of Section 11B of Central Excise Act, 1944 out of the refund claim amount of Rs. 71,55,508/- filed in Form-R on 15th February, 2015. The Adjudicating Authority rejected the refund claim of Service Tax amounting to Rs. 35,44,329/-. Aggrieved with the impugned order, the appellant filed appeal before the learned Commissioner. The learned Commissioner vide Order-in-Appeal No. CCESASRT (Appeal) PS-028/2017-18 dated 29.09.2017 rejected the appeal preferred by the appellant M/s. Ashirwad Palace Building Maintenance and upheld the order passed by the Adjudicating Authority. 1.3 Feeling aggrieved from the Order-in-Original dated 30.10.2015, the Department also filed cross appeal before the Commissioner (Appeals). The learned Commissioner (Appeals) vide order No. CCESA-SRT (Appeals) PS29/2017-18 dated 29th Sep....
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....appellant submitted that on 9th January, 2015 refund application was made in the name of Ashirwad Palace Building Maintenance seeking refund of Rs. 71,55,508/- recovered by DGCEI during investigation from December-2011 to October-2012. The learned Assistant Commissioner issued a Show Cause Notice dated 6th May, 2015 proposing denial of entire refund claim of Rs. 71,55,508/-, on the ground of non-submission of original copies of taxpayers' counterfoils for amounts of Rs. 2,50,000/- and 2,50,000/- deposited on 2nd December, 2011. It was also stated that copies of all taxpayers' counterfoils show that the amount of Rs. 71,55,508/- was deposited under the assessee code which does not belong to the claimant. Thus, no amount has been paid by the claimant even though refund has been claimed and evidence regarding unjust enrichment not submitted. The Show Cause Notice was adjudicated vide Order-in-Original dated 30th October, 2015 through which the learned Assistant Commissioner sanctioned refund of Rs. 36,11,179/- and rejected the remaining amount of Rs. 35,44,329/- on the ground that the said amount was not deposited by the appellant but was deposited in the name of Ashirwad Palace Commo....
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....irwad Palace suo motu with 12% interest without waiting for any refund application once it withdrew its appeal before the Hon'ble CESTAT. Regarding this submission, the learned Counsel for the appellant relied upon the order passed by the Tribunal in Ispat Traders vs. COMMISSIONER OF CUSTOMS reported at 2010 (9) TMI 346 CESTAT, Ahmedabad. 2.7 The learned Counsel for the appellant also submitted that the factum of payment of the entire sum of Rs. 71,55,508/-, into the Government exchequer is undisputed and the Revenue has admitted to have received the said money. He has further submitted that the division of deposits under two separate registration codes was merely an internal accounting classification within the same residential setup. The selection of an alternative code at the time of deposit was merely a clerical error. The deposits were made prior to obtaining formal registration and are linked to the same Permanent Account Number relating to Income Tax. He has also submitted that the Show Cause Notice originally issued by the department treated 'Ashirwad Palace' as a single consolidated assessee. The demand was never split or bifurcated between two units during the assessme....
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....in-Appeal passed by the learned Commissioner (Appeals) be set aside. 3. The learned Authorised Representative, while countering the arguments of the learned Counsel for the appellant, submitted that the main contention of the learned Counsel for the appellant is that M/s. Ashirwad Palace Building Maintenance and M/s. Ashirwad Palace Common Maintenance are one assessee. The learned AR submitted that the DGCEI demand was raised on two separately identifiable units - Ashirwad Palace Building Maintenance and Ashirwad Palace Common Maintenance, both have been distinctly mentioned in the DGCEI Show Cause Notice and the demand appropriation Order dated 11th April, 2014. However, the appellant now selectively rely upon only on the common name 'Ashirwad Palace' which has been clearly mentioned at para 5.3 of the impugned Order-in-Appeal dated 29th September, 2017. The learned AR further submitted that each unit has its own Service Tax registration and bank account. M/s. Ashirwad Palace Builidng Maintenance had assessee code AACAA3583HSD001 and Ashirwad Palace Common Maintenance had assesse code NACAAAADVVVVSE001 and payments were made from both the codes. 3.1 The learned AR further su....
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....h the above mentioned units were engaged in providing different nature of services which have been detailed in the Show Cause Notice of DGCEI and also the Show Cause Notice was issued to both the units." 4.3 I am of the view that the conclusion arrived at by the learned Commissioner in the impugned order is not sustainable. This conclusion is not in accordance with the law laid down by the Hon'ble Jurisdictional High Court of Gujarat in Devang Papers Mills Pvt Ltd vs. Union of India (supra). In this case, the Petitioner had mistakenly deposited excise duty under an incorrect registration code ending in 001 instead of 002. Hon'ble Gujarat High Court observed as follows:- "Such amount was deposited by the petitioner with the Government of India and it was duly credited in the Government account... Indisputably, thus, the petitioner had singular duty liability for which the actual payment was also made. Under the circumstances... the respondents are directed to give credit of the duty paid by the petitioner... by making necessary accounting entries on the basis that the same was paid at the relevant time." 4.4 In the present case, the entire sum of Rs. 71,55,508/- was d....
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....2.12.2011 and 16.10.2012 do not contain any signature of the appellant and it may be possible that assessee codes were obtained by DGCEI and the cheques collected from the appellant were deposited directly into Government account by the DGCEI. 4.8 In Uday Raj Singh vs. Commissioner reported at 2023 SCC Online CESTAT 5072, it was observed that principle under the trade notice no. 03/2014-ST dated 10.07.2014 read with the circular is, "where the Government dues by way of service tax are deposited, may be in a wrong accounting code or STC code, the assessee is not required to pay the tax again and the same would cover the present case where the tax amount due has been deposited with the Government exchequer but under wrong STC. It is also not the case of the revenue that the partnership firm, in respect of which the challans were deposited, had any service tax liability. In the above case, the Tribunal has quoted the relevant para from the order in the case of Commissioner of Central Excise, Haldia vs. Tata Meta Links Ltd reported at 2023 (6) TMI 10-CESTAT Kolkata - 10. We find that the Appellant has discharged their Service Tax liability under RCM on GTA services. They ha....
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....d office Mumbai but the appellant's Anjar unit as well as their Mumbai head office is one single entity. Accordingly, in the light of the above circular, the department could have made the necessary adjustment instead of raising the demand twice on the appellant. The issue has been well settled in many cases. Reliance may be placed in the case of M/S. WESTERN COALFIELDS LTD VERSUS COMMISSIONER OF EXCISE & SERVICE TAX (2019 (4) TMI 1075-CESTAT MUMBAI] where it was held that as long as the duty is paid and credited duly to the Govt. of India account, procedural infractions which are curable in nature will not nullify such payments. Demanding such duty second time is certainly harsh and has no sanction of law, more so along with interest and penalty. From the above judgments and board circular cited, it is settled that merely because the service tax paid under different registration but by the same company, cannot be tantamount to non-payment of service tax. Hence, the demand of service tax which was already paid cannot be made twice. Accordingly, demand of service tax in this case is also not sustainable." 4.11 It will be worthwhile to mention here that CBEC (Boa....
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.... 1962, since the goods were lost or rendered unavailable before clearance for home consumption. Consequently, the Petitioner is entitled to a refund of the customs duty amounting to Rs. 35,37,358/-, together with interest at 9% from the date of payment of the Custom Duty. 64. Accordingly, we direct the Respondent No. 1, the Assistant Commissioner of Customs (Refund), to process and refund the said amount to the Petitioner, along with interest at 9%, within a period of four weeks from the date of uploading of this order. The interest shall be computed from the date of its payment by the Petitioner till the actual date of refund. A compliance report must be filed by the Assistant Commissioner of Customs (Refund)-R1, latest by 8 January 2026, so that the Petitioner is not once again forced to come to this Court alleging noncompliance." 4.13 I am also of the view that when the department withdrew its appeal before the CESTAT against the Order-in-Appeal dated 30th September, 2014 passed by the learned Commissioner, the Revenue had no authority to retain the money collected from 'Ashirwad Palace' towards service tax on the ground of assessee codes being different in the taxpa....
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....by the Board and the precedent decisions, it is quite clear that the question of filing a refund claim under Section 27 of the Act does not arise and the appellant in this case have already fulfilled their obligation by submitting a letter on 9-7-96. Therefore the department was bound to sanction refund before 20-8-96. Having failed to do so, the department is liable to pay interest at 12% in view of the several precedent decisions cited by the learned advocate and discussed above. 24. Under these circumstances the impugned order is set aside and the Revenue is directed to sanction refund to the appellants without insisting on any further application under Section 27 of the Act and refund the amount with interest from 20-8-96 to the date of payment." 4.15 As far as the applicability of principle of "unjust enrichment", it is an established legal position that the principles of unjust enrichment under Section 11B cannot be mechanically applied when an amount is deposited during any such investigation. Such deposits made to secure the interest of the Revenue during proceedings are nothing but pre-deposit made by appellant and do not bear the characteristics of a self-asse....