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TMI Blog2017 (9) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon’ble President for constitution of a Larger Bench of this Tribunal to decide the issue Whether in respect of the claim for refund of illegal levy of Service Tax or of Service Tax collected without authority of law, the statutory time limit prescribed in terms of Section 11B of Central Excise Act 1944 will be applicable or not? - matter referred to Larger Bench. - Appeal No. ST/320/2011 - Final Order No. 61742/2017 - Dated:- 7-9-2017 - Mr. Devender Singh, Member ( Technical ) Sh. Abhishek Gupta, Advocate for the Appellant Sh. Satyapal, AR for the Respondent ORDER Per : Devender Singh The appellants have filed this appeal against the Order-in-Appeal No. 747/S. Tax/ D-II/10 dt. 06.12.2010 passed by the Commissioner of Central Excise, Delhi-II. The brief facts of the case are that the appellants filed two refund claims of Service Tax paid as recipients of service on the services received from the Foreign Commission Agent under Business Auxiliary Services. The claims were filed on the ground that the said tax was paid by them inadvertently as the same was otherwise exempt under Notification No. 13/2003-ST dt. 20.06.2003 as amended. The said notification e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about on 09.07.2004. In the said explanation, rice was also included. As a result of further amendment dt. 07.06.2005 in the Notification No. 13/2003, clause (i) of the explanation was deleted. The said clause (i) pertained to the definition of the Commission agents. The CBEC clarification dt. 26.05.2011 made it clear that the commission agents stationed abroad were covered by the Notification No. 13/2003-ST. Hence, the first question is whether the Service Tax which was paid by the appellants was due to mistake of law. I find that the clarification dt. 26.05.2011 did not exist on the date of payment of the Service Tax. The amended Notification No. 13/2003, from which the clause (i) had been deleted, provided for the commission agents in relation to sale or purchase of agriculture produce from the Service Tax leviable thereon under Section 66 of the said Act. Hence, clearly the activity of foreign commission agents was not covered in the said notification as it referred to Section 66 (2) of the Finance act, 1994 and not to Section 66 A of the Finance Act, 1994 or Rule 2 (I) (d) (iv) of the Service Tax Rules. So the payments made by the appellants on the dates of payment were not o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund and the same is not hit by the limitation prescribed under Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance act, 1994. 18. Moreover, it may be mentioned that the Department should not take advantage of the ignorance of the assessee-Appellants as per the ratio laid down in the case of Parekh Bros Vs. CIT (1984) 150 ITR 105 and CIT Vs. Maha Laxmi Sugar Mills (1986) 160 ITR 920 (SC). 19. In the instant case, we are of the view that it is not a case of refund of tax, but return of deposit for which limitation (Section 11B of the Act) is not applicable. Hence, we set aside the impugned order and direct the jurisdictional Commissioner to return the deposited amount, as per law. 7. I also find that in the case of CCE, Hyderabad-III Vs. XL Telecom Ltd. 2006 (206) ELT 303 (Tri. Bang.), relied upon by the Revenue, the Division Bench of this Tribunal held as below:- 4. On a careful consideration, we notice that the Revenue has taken a well sustained ground. For the reason that the Apex Court in the case of Asst. Commissioner of Customs v. Anam (supra) had laid down in very clear terms that even in respect of claim for refund of an ille ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Civil Court/High Court shall be deemed to be unsustainable in law and such direction shall be set aside. The period prescribed by the Central Excise Act/Customs Act for filing a refund application in the case of illegal levy cannot be extended by any Authority or Court. (2) Where, however, a refund application was filed within the period prescribed by the Central Excise Act/Customs Act but has been dismissed wholly or partly on any ground and the said order is questioned by way of a writ petition or a suit or any appeal arising therefrom the manufacturer/purchaser shall be entitled to withdraw the writ petition, suit or an appeal arising therefrom, as the case may be, and file an appeal before the appropriate appellate authority within sixty days from today. It is clarified herewith that even in a case where such writ petition has been allowed and an appeal filed by the Revenue is pending, the writ petitioner shall be entitled to withdraw the writ petition, in which event, the Revenue appeal shall be disposed of permitting the writ petitioner to withdraw the writ petition to pursue the remedy proposed hereby. If such an appeal is filed, it shall be entertained without raising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a company or a society, the affidavit shall be sworn by the Managing Director of the Principal Officer of the Company or the Society, as the case may be. Such an affidavit shall be treated as an averment/ assertion which an applicant for refund has to make in terms of the judgment in Mafatlal. (7) (a) Where the refund claim is rejected by this Court, the assessee who has already obtained any amount by way of refund shall be liable to pay back the same to the Department and the Department shall be entitled to recover the same in accordance with law. (b) If the refund claim is rejected by an authority under the Act and where the assessee has already obtained the refund he shall be liable to pay back the said amount to the Department according to law and the Department shall be entitled to recover back the said amount, subject to orders, if any, by an Appellate Authority. In view of the above clarification given by the Apex Court in term of Mafatlal s case (supra), the refund application even in respect of illegal levy or amounts collected beyond the recoverable duty is required to be filed within the period of limitation prescribed under Section 11B of CE Act. Respec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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