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TMI Blog2017 (3) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... the said amount and will have to be refunded. It is not a case of refund of tax, but return of deposit for which limitation (Section 11B of the Act) is not applicable. Appeal allowed - decided in favor of assessee-appellant. - Service Tax Appeal Nos. 57493 & 57494 of 2013 - ST/A/52170-52171/2017-CU[DB] - Dated:- 8-3-2017 - Mr. (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Member ( Technical ) For the Petitioner : Ms. Vibha Narang, Adv For the Respondent : by Sh. Ranjan Khanna, DR) ORDER Per V. Padmanabhan Both the appeals have been filed by the assessee- Appellants against the order-in-appeal 40/ST/DLH/2013 41/ST/DLH/2013 dated 18.02.2013 passed by the Commissioner of Central Excise (Appeals), New Delhi. Since the issue in both the appeals is identical, so they are disposed of by this common order for the sake of brevity. 2. The brief facts of the case are that the assessee- Appellants were registered with the Service Tax Department for providing the Business Auxiliary Service under Section 65 of the Finance Act, 1994 and during the period under consideration (01.06.2005 to 31.01.2007), were providing liaisoning services to M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise (Appeals), Bangalore vs KVR Construction , 2012 (26) STR 195 (Kar.); (iii) Commissioner of Central Excise, Bangalore-III vs Motorola India Pvt. Ltd., 2008 (11) STR 555 (Kar.); (iv) Manibhai Brothers vs Commissioner of Central Excise Service Tax, Vadodara, 2016 (337) ELT 607 (Tri.-Ahmd.); (v) Union of India vs ITC Ltd., 1993 (67) ELT 3 (SC); and (vi) Hind Agro Industries Ltd. vs Commissioner of Customs, 2008 (221) ELT 336 (Del.) Lastly, she submits that the refund of the deposit may kindly be allowed. 5. On the other hand, Shri Ranjan Khanna, learned Department Representative, submits that Section 11B of the Central Excise Act, 1944 is prescribing a time limit of one year for claiming refund. Hence, the refund claim is time barred. He also drawn our attention to the impugned order (para 8) wherein it is clearly mentioned that the assessee-Appellants have not provided the copy of the agreement dated 24th March, 2005 entered with DEC, China. He also relied upon the ratio laid down in the case of Miles India Ltd. vs Assistant Collector of Customs, 1987 (30) ELT 641 (SC); and Collector of Central Excise, Chandigarh vs Boaba Co-operative Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication of refund having been made well within the period of three years after discovery of mistake by the Appellants, are not barred by limitation . Thus, the Delhi High Court, for refund, has allowed a period of three years. Similarly, the Hon'ble Supreme Court in the case of ITC Limited (supra) has discussed the provisions of Section 11B of the Central Excise Act, 1944, as amended from time to time. The Hon'ble Supreme Court has held that : It has been settled by this Court that where excess duty was not payable by the party under the provisions of a statute but had in fact been paid under a mistake of law, the party has a right to recover it and there is a corresponding legal obligation on the part of the Government to refund the excess duty so collected because the collection in such cases would be without the authority of law. The payment and recovery of excess excise duty was thus on account of a mutual mistake. We are, therefore, of the opinion that the High Court, while disposing of the writ petition under Article 226 of the Constitution of India, was perfectly justified in holding that the bar of limitation which had been put against the respondent by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment had no authority to demand service tax from the respondent because of its circular dated 17-9-2004, the payment made by the respondent company would not partake the character of service tax liable to be paid by them. Therefore, mere payment made by the respondent will neither validate the nature of payment nor the nature of transaction. In other words, mere payment of amount would not make it a service tax payable by them. When once there is lack of authority to demand service tax from the respondent company, the department lacks authority to levy and collect such amount. Therefore, it would go beyond their purview to collect such amount. When once there is lack of authority to collect such service tax by the appellant, it would not give them the authority to retain the amount paid by the petitioner, which was initially not payable by them. Therefore, mere nomenclature will not be an embargo on the right of the petitioner to demand refund of payment made by them under mistaken notion. [Emphasis supplied] 11. Thus, in the instant case also, the assessee-Appellants were not subjected to Service Tax. Therefore, mere payment made by the assessee-Appellants will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s eligible for refund. In this case also, prior to 1-5-2006, the provisions of Service Tax were not applicable on the respondents and the amount paid as Service Tax was not payable by them at all. In that situation, the provisions of Section 11B of Central Excise Act, 1944 extended to the Service Tax are not applicable to this case. Hence, the bar of limitation is not applicable to this case. [Emphasis supplied] 14. After considering the various case laws on the subject which are discussed in the above paragraphs, we come to the conclusion that Section 11B generally governs the claim for refund of duty and interest paid on such duty. The Section has been made applicable for service tax also. In the case of KVR Constructions (supra), the Hon'ble Kerala High Court has laid down yardsticks to decide those cases where Section 11B may not be applicable in service tax cases. The Hon'ble High Court has held that, if there is no authority to collect service tax by the department, it would not give them the authority to retain the amount paid which was initially not payable by them. 15. In the present case, the assessee-Appellants were rendering liaisoning ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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