Custom, Excise & Service Tax Tribunal
Aap Solutons vs The Assistant Commissioner Of Central ... on 6 June, 2023
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
MUMBAI
WEST ZONAL BENCH
Service Tax Appeal No. 85555 of 2020
(Arising out of Order-in-Appeal No. PUN-CT-APPII-000-095-19-20
dated 05.12.2019 passed by the Commissioner (Appeal-II), Central
Tax, Pune
Aap Solutions .....Appellant
Flat no.603, Pushp Sugandh Apt.
Manik Moti More Bag
Pune Satara Road,
Pune
VERSUS
Commissioner of CGST, Pune II .....Respondent
1 Seth Ramchand Malukchand Udyog Bhavan, st Teen Matti Chowk, Baramati APPEARANCE:
Shri Sanjay Deshpande, Advocate for the appellant Shri SBP Sinha, (AR) for the respondent CORAM:
HON'BLE MR. AJAY SHARMA, MEMBER (JUDICIAL) FINAL ORDER No: A/85926/2023 DATE OF HEARING : 15.12.2022 DATE OF DECISION : 06.06.2023 Per: AJAY SHARMA This appeal is arising out of the impugned order dated 05.12.2019 passed by Commissioner (Appeal-II), Central Tax, Pune rejecting the appeal filed by the appellant and upholding the order of the Adjudicating Authority that the refund claim is -2- ST/85555/2020 time barred in terms of Section 11B of the Central Excise Act, 1944.
2. The appellant are providing taxable service in the category of Consulting Engineering Service. During the period July, 2016 to September, 2016 they provided taxable service upon which service tax amount of Rs.87,750/- was discharged vide challan dated 5.10.2016. However, inadvertently under the impression of non-discharge of the said liability, the appellant again on 13.4.2017 paid the service tax alongwith interest i.e. Rs.87,750/- + interest Rs.8228/- (totaling Rs. 95,978/-) for the same period i.e. July, 2016 to September, 2016. On realizing their mistake, the appellant filed refund claim on 21.2.2019 for the said amount of Rs.95,978/-. According to the department since the refund claim was made after the period of one year from the date of deposit therefore the same is not eligible for refund and accordingly a show cause notice was issued to that effect which culminated into the adjudication order dated 1.7.2019 by which the refund claim was rejected being beyond of the period prescribed by section 11B ibid. On appeal filed by the appellant, the learned Commissioner rejected the same.
3. I have heard learned counsel for the appellant and learned Authorised Representative for the Revenue and perused the case records including the written submissions/synopsis alongwith case laws cited by the respective sides. The issue involved herein lies in a narrow compass whether the appellant -3- ST/85555/2020 is entitled for the refund claim of inadvertent payment which has already been paid by them? And whether Section 11B ibid has application on the facts of the case? The heading of Section 11B ibid is 'claim for refund of duty and interest, if any, paid on such duty'. From the language of the heading of the said section it is clear that if there is any claim for refund of duty and interest on such duty then it has to be filed within the period prescribed therein. But the instant case is not about refund of duty as the duty has already been paid by the appellant on 5.10.2016, it is about the refund of the amount inadvertently paid by them again for the very same period i.e. July, 2016 to September, 2016 alongwith interest. It is not the case that the claim is fake or is not supported by any evidence. The department is admitting the double payment but denying the refund claim being beyond the period prescribed by Section 11B ibid. The Hon'ble High Court of Judicature at Bombay in the matter of Parijat Construction vs. Commissioner, Nashik; 2018 (359)ELT 113 (Bom.) has held that the limitation prescribed u/s. 11B ibid is not applicable to refund claims for Service tax paid under mistake of law. In the present case although there is no mistake of law but it has been paid by mistake as they have already discharged the duty and paid the same again with interest although they were not liable to pay.
4. The Hon'ble High Court of Judicature at Madras in the matter of 3E Infotech vs. CESTAT, Chennai; 2018 (18) G.S.T.L. 410 (Mad.) has also taken a similar view and held that when service tax is paid by mistake, a claim for refund cannot be -4- ST/85555/2020 barred by limitation merely because the period of limitation has expired. The relevant paragraphs of the said decision are reproduced as under:-
"12. Further, the claim of the respondent in refusing to return the amount would go against the mandate of Article 265 of the Constitution of India, which provides that no tax shall be levied or collected except by authority of law.
13. On an analysis of the precedents cited above, we are of the opinion, that when service tax is paid by mistake a claim for refund cannot be barred by limitation, merely because the period of limitation under Section 11B had expired. Such a position would be contrary to the law laid down by the Hon'ble Apex Court, and therefore we have no hesitation in holding that the claim of the Assessee for a sum of Rs. 4,39,683/- cannot be barred by limitation, and ought to be refunded.
14. There is no doubt in our minds, that if the Revenue is allowed to keep the excess service tax paid, it would not be proper, and against the tenets of Article 265 of the Constitution of India. On the facts and circumstances of this case, we deem it appropriate to pass the following directions:-
(a) The Application under Section 11B cannot be rejected on the ground that is barred by limitation, provided for under Section.
(b) The claim for return of money must be considered by the authorities."
5. On similar lines, this Tribunal also in the matter of Javed Akhtar vs. CGST, Mumbai West; [2021] 132 taxmann.com 166 (Mumbai-CESTAT) in Service Tax Appeal No. 85611 of 2019 vide order dated 09.11.2021 has held that retention of any amount by the department which was paid by the appellant therein -5- ST/85555/2020 without any liability or in excess of the liability violates Article 265 of the Constitution of India.
6. In view of the discussions made hereinabove, I am of the considered view that the appellant is entitled for refund of the amount of service tax paid by them totaling Rs.95,978/- as the same has been deposited without any liability as the duty has already been discharged by the appellant. So far as the application of Section 35B ibid is concerned as raised by Revenue, since the same is discretionary I am not inclined to exercise it on the facts of this case. The impugned order is accordingly set aside and the appeal filed by the appellant is allowed with consequential relief, if any, in accordance with law.
(Pronounced in open Court on 06.06.2023) (Ajay Sharma) Member (Judicial) //SR