Tripura High Court
Central Excise (Appeals) vs Kvr Construction on 22 February, 2022
Author: Indrajit Mahanty
Bench: Indrajit Mahanty, S.G. Chattopadhyay
Page - 1 of 4
HIGH COURT OF TRIPURA
AGARTALA
Central Ex. App. No. 03 of 2019
For Appellant(s) : Mr. Nihar Dasgupta, Advocate.
Mr. B. Debnath, Advocate.
For Respondent(s) : Mr. Biswanath Majumder, CGC.
Mr. Paramartha Datta, Advocate.
HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY Order 22/02/2022 (Indrajit Mahanty, C.J.) Heard learned counsel for the respective parties.
This matter was admitted by this Court by order dated 24.06.2019 referring to the decisions of the Hon'ble Supreme Court in case of Ambica Industries Vrs. Commissioner of Central Excise; reported in (2007) 6 SCC 769 and also in case of Canon Steels (P) Limited Vrs. Commissioner of Customs; reported in (2007) 14 SCC 464. The appeal was admitted on four issues, but, the learned counsel for the writ petitioner did not press the issues No. (i), (ii) and (iii) and only pressed the issue No. (iv) which is quoted hereunder:
" (iv) Whether the assessing authority/appellate authority can dismiss a claim of refund U/S 11B of the Central Excise Act, (limitation), When the deposit was made out of mistake of fact?"
The petitioner is the Tripura Cricket Association and it is averred that they had made deposit of service tax by mistake of law. He has further submitted that the petitioner has not provided any service as defined under section 65B (44) of the Finance Act, 1994 for consideration to the BCCI and it has Page - 2 of 4 received fewer grants/donation from the BCCI. It is further averred that the petitioner made an application of refund of service tax which came to be rejected by the learned Assistant Commissioner on the ground of limitation under section 11B of the Central Excise Act, 1944 which is applicable to service tax and stated that the refund claimed was made after one year after the relevant date. Thereafter, various challenges have been made by the petitioner from time to time to the said order. The petitioner has repeatedly challenged the rejection of his application for refund before various authorities. The matter remains pending before the Commissioner of Central Tax (Appeals) in which the Commissioner has directed transfer of the appeal through 'Call Book' till outcome of the case similar in nature in CA No.2980-2981/2014 which is pending before the Hon'ble Supreme Court.
Learned counsel for the petitioner placed reliance on the judgment rendered by the Hon'ble Karnataka High Court in case of Commissioner of Central Excise (Appeals), Bangalore Vs. KVR Construction, reported in 2012(26) S.T.R. 195 (Kar.). In the said judgment, the Hon'ble Karnataka High Court came to the conclusion that section 11B of the Central Excise Act was not applicable to a refund application filed by the petitioner based on mistake of law. The Hon'ble Karnataka High Court fairly held that section 35B(1)(b) was inapplicable. Learned counsel for the petitioner further relied upon the challenge to the said order of the Hon'ble Karnataka High Court before the Hon'ble Supreme Court in case of Commissioner V. KVR Construction, reported in 2018 (14) G.S.T.L. J70 (S.C.). The Hon'ble Supreme Court dismissed the challenge to the order passed by the Karnataka High Court referred hereinabove and came to Page - 3 of 4 hold that the Karnataka High Court had held that the provision of limitation under section 11B of the Central Excise Act, 1944 would not apply for refund of service tax paid by mistake on exempted services even though the assessee had filed claim under Form-R which shows that they had treated such payment as duty but later on claimed it as not a duty. Mere payment of an amount by the assessee and acceptance by the Department would not regularize such an amount as duty if it was not actually payable and paid by mistake. It was further held that writ petition against the order of Commissioner (Appeals) rejecting refund of Service tax paid on exempted services as time-barred, is maintainable and cannot be rejected on the ground of availability of alternate appellate remedy particularly when payment of Service Tax exempted services held not be Tax/duty so as to attract the provisions of Section 11B of Central Excise Act, 1944 and also the provision of Section 35B of the said Act relating to appeal to Appellate Tribunal is not applicable.
In view of the same, the application is allowed.
The issue framed hereinabove is answered in the positive in favour of the petitioner and the appellate authority i.e. the Commissioner of Central Tax (Appeals) is directed to take up the appeal and dispose of the same within a period of 2(two) months from the date of communication of the copy of this order to the authorities concerned. It is further clarified that pendency of the Vidarbha Cricket Association case before the Hon'ble Supreme Court may or may not be of relevance that the law as it stands as on date and the issue having been confirmed by the Hon'ble Supreme Court in the Commissioner V. KVR Construction vis-à- vis the issue of limitation, we find no justifiable ground for the Commissioner of Page - 4 of 4 Central Tax (Appeals) to remit the case to the 'Call Book'. Hence, necessary immediate direction be given to return the file from the 'Call Book' and take up the matter immediately and dispose of the same within the time as directed hereinabove.
The petition stands disposed of. Pending application if any, also stands disposed of.
(S.G.CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ Sabyasachi G