TaxTMI 
TaxTMI 
2026 (8) TMI 1602
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....in-Appeal No.IND-EXCUS-000-APP-61-2021-22 dated 07.02.2022] affirming the rejection of the refund claim both on the ground of limitation as well as on the principle of unjust enrichment in terms of Section 11B of Central Excise Act, 1944 as made applicable to the provisions of the Finance Act, 1994 [CEA] by virtue of Section 83. 2. The case of the appellant is that due to ignorance of law, they were not aware that they were entitled to abatement of service tax and, therefore, paid the service tax on the entire gross amount. For the FY 2016- 17, they had mistakenly paid excess service tax amounting to Rs.1,12,77,924/-, whereas their liability was only Rs.34,21,301.95 and, therefore, paid excess of Rs.78,01,682/-. Similarly, they paid serv....
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....ch was in the nature of deposit, the period of limitation would not apply. In support of his contentions, the learned Counsel has referred to series of decisions rendered by the Division Benches of various High Courts and also by the Tribunal. 4. The learned Authorised Representative for the Revenue reiterated the findings of the Authorities below and prayed that the appeal be dismissed on that ground. The learned Authorised Representative has also relied on the decisions of the Apex Court in Union of India Vs. ITC Limited [1993 Supplement IV SCC 326/1993 (67) ELT 3 (SC)] as well as in the case of BT (India) Ltd. [2021 SCC Online Del 5423] by Delhi High Court observing that provisions of refund being in the nature of execution proceeding....
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....he recent decision of the Tribunal in the case of McCann Erickson (India) Pvt. Ltd. Versus Commissioner of CGST & CX GST, Delhi [2026 SCC Online CESTAT 775 (Service Tax Appeal No.52352 of 2024 ) dated 20.03.2026], where taking note of the decision of the Division Bench of the Gujarat High Court in Swastik Sanitary Wares Ltd. & Anr. versus UOI & Ors. [2013 (296) ELT 321 (Guj.)] and Karnataka High Court in Commissioner of Central Excise (Appeals), Bangalore versus KVR Construction [2012 (26) STR 195 (Kar)] the Bench held that excess payment of service tax is an admitted fact and this amount deposited in excess by inadvertent error, which the government cannot retain or with hold would not fall within the legal parameters of Section 11B of the....
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....rence of opinion, the following questions arise for consideration by learned 3rd Member: (1) Whether the limitation prescribed under section 11B of the Central Excise Act will not be applicable 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/....
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....the case of ITC Limited and by the Delhi High Court in the case of BT (India), we are of the opinion that same are not applicable since the present case is not related to refund of service tax rather refund of deposit and therefore, the principles laid down therein would not apply. 9. Now coming to the rejection of the refund claim on the ground of unjust enrichment, we find that the claimed amount was not collected by the appellant from the customers, and as a result, incidence of such service tax had not been passed on by them to their customers. In support, the appellant has submitted random invoices raised to various parties during FY 2016-17 and 2017-18. Also the Certificate dated 11.06.2018 of the Superintendent, District Ujjain, i....