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TMI Blog2019 (5) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... ies to the present case. The appeal is rejected as a refund claim under Section 11B of Central Excise Act,1944 read with Section 83 of the Finance Act, 1994 is not maintainable for any amount paid beyond the scope of the Finance Act, 1994 itself. - Service Tax Appeal No. 31055 of 2018 - A/30490/2019 - Dated:- 6-5-2019 - Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Ms. Priyanka Rathi, Advocate for the Appellant. Shri C. Mallikharjun Reddy, Superintendent /AR for the Respondent. ORDER PER: MR. P. VENKATA SUBBA RAO 1. This appeal is filed against Order-in-Appeal No. VIZ-EXCUS-002-APP- 043-18-19, dated 11.05.2018. After hearing both sides and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... National Institute of Public Finance and Policy [2019(20)G.S.T.L. 330 (Del.)] and 3E Infotech [2018(18)G.S.T.L. 410 (Mad.)]. Ld. Counsel would argue that what is not due to the Government, cannot be retained by them and the refund application cannot be rejected on the ground of limitation when the amount was paid under mistake of law which is squarely their case. They were not liable to pay service tax but under mistake they have paid the same and therefore the department cannot reject refund on the ground of limitation under Section 11B. He would argue that what was paid was not service tax at all although it was wrongly paid as service tax. It was just an amount deposited in the exchequer because no service tax was not leviable on them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 12E of Central Excise Act, 1944 which gives the Officers the powers to perform functions under the Act. Section 12E read with section 11B of Central Excise Act, 1944 gives the Asst. Commissioner or Dy. Commissioner the power to sanction refunds. Both these sections have also been made applicable to service tax by virtue of Section 83 of the Finance Act, 1994. Therefore, if what was paid was not service tax, the Officer had no jurisdiction to entertain any refund claim. His powers to sanction refund wholly flow from Section 11B and 12E of Central Excise Act, 1944 as made applicable to Service Tax by Section 83 of the Finance Act, 1994. Similarly the powers of the Commissioner (Appeal) to hear and decide the appeals is also subject to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile a suit under Section 72 of the Contract Act, 1872 (hereinafter called Contract Act ) or invoke the writ jurisdiction of the High Court under Article 226 of the Constitution. Class II : Illegal levy - where claims for refund are founded on the ground that there is mis-interpretation/mis-application/erroneous interpretation of the Excise Act and the Rules framed thereunder. Oridinarily, all such claims must be preferred under the provisions of the Excise Act and the Rules framed thereunder by strictly adhering to the stipulated procedure. However, in cases where the authorities under the Excise Act arrogate to themselves jurisdiction even in cases where there is clear want of jurisdiction, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. Ordinarily, no assessee can be allowed to reopen proceedings that have been finally concluded against him on the basis of a favourable decision in the case of another assessee. This is because an order which has become final in the case of an assessee will continue to stand until it is specifically recalled or set aside in his own case. 105. In cases where the levy of a tax has been held to be (1) unconstitutional; or (2) void for want of inherent jurisdiction (as explained in Class II), it is open for the assessees to take advantage of the declaration of the law so made and claim refunds on the ground that they paid the tax under a mistake of law. This is because such claims are outside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of GMR Vemagiri Power Generation Limited (supra), this Bench has held that in case of levy beyond the scope of law, the limitation should not apply relying upon various judgments of Hon ble High Courts. Either in that case or in the cases before Hon ble High Courts, the question of jurisdiction of the Officers in deciding on the refund applications was not discussed. Ld. DR is correct in pointing out that the appropriate legal remedy in this case was held to be a Civil Suit under section 72 of the Contract Act by Hon ble Apex Court in the case of Mafatlal Industries Limited (supra). I find the refund jurisdiction of the Officers of Central Excise and Service Tax emanates from Section 12E and Section 11B of Central Excise Act, 1944 and S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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