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TMI Blog2019 (6) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... is rejected not only on the ground of time bar but as well on unjust enrichment, the matter requires to be remanded to the adjudicating authority to reconsider this issue of unjust enrichment. Appeal allowed by way of remand. - ST/00555/2009 - FINAL ORDER NO. 40634/2019 - Dated:- 25-3-2019 - Smt. Sulekha Beevi C.S, Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) For the Appellant Ms. Amirtha Aravind, Adv. For the Respondent Shri S. Govindarajan, AC (AR) ORDER Per Bench: Brief facts are that the appellant filed a claim for refund of ₹ 75,87,079/- being the service tax paid by them under the category Survey and Explora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any way connected to Survey and Exploration of Mineral Services and, therefore, the appellant is eligible for refund of the amount, which was paid by mistake. In the case of appellant s sister concern viz., M/s. Mohabir Enterprises Vs CC, CCE ST, Chennai vide Final Order No.42368/2017, dated 26.09.2017, the Tribunal had occasion to analyse the very same issue with regard to the demand of service tax under Survey and Exploration of Mineral Services. The matter was remanded to the original authority to look into the question of unjust enrichment. It is also argued by learned counsel that the rejection of refund claim on the ground of time bar will not be applicable when the service tax is paid under mistake. The Hon ble High Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f services as per job descriptions given hereunder: The seismic job service is broadly divided as follows : 1. Camp Mobilisation and Demobilisation 2. Camp Establishment i. Preparation of camp ground ii. Thatched huts / bath / Toilet construction iii. Tent Erection / Bunk Houses Jacking up iv. Electrical wiring and fitting v. Installation of Portable magazine vi. Preparation of internal roads / paths vii. Sinking of Tube Wells 3. Camp Maintenance : i. Daily House-keeping of all bunk houses / living and office huts etc. ii. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund which was followed by this Bench in another case, in the recent Final Order No.40572/2019, dated 18.03.2019. The facts in all these cases are identical and similar. The contracts entered by the appellants do not show that the activities explained and shown as above would fall under Survey and Exploration of Mineral Services. For this reason, we hold that the appellants are not liable to pay service tax during the disputed period on the consideration received under such contracts. 6. The learned Authorised Representative for the Revenue laid much stress on the decision of Hon ble Supreme Court in the case of Collector of Central Excise, Chandigarh Vs M/s. Doaba Co-operative Sugar Mills reported in 1988 (37) E.L.T.478 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Bombay High Court in the case of Parijat Construction v. Commissioner Excise, Nashik, reported in 2018 (359) E.L.T. 113 (Bom.), where the Bombay High Court has held as under :- 4. We are of the view that the issue as to whether limitation prescribed under Section 11B of the said Act applies to a refund claimed in respect of service tax paid under a mistake of law is no longer res integra. The two decisions of the Division Bench of this Court in Hindustan Cocoa (supra) and Commissioner of Central Excise, Nagpur v. M/s. SGR Infratech Ltd. (supra) are squarely applicable to the facts of the present case. 5. Both decisions have held the limitation prescribed under Section 11B of the said Act to be n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 ₹ 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 agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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