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TMI Blog2021 (4) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The theory of mistake of law and the consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by an assessee taking advantage of the decision in another assessee s case. All claims for refund ought to be, and ought to have been, filed only under and in accordance with Rule 11/Section 11B and under no other provision and in no other forum. An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just because in another assessee s case, a similar point is decided in favour of the manufacturer/assessee. The refund of tax if any borne by the petitioner had to be made only within a period of limitation prescribed under Section 11B of the Central Excise Act, 1944 notwithstanding the fact that the petitioner became aware of the wrong payment of tax only after the Central Board of Excise and Customs issued clarification bearing reference Order No. 2/1/2002-ST dated 24.4.2002. Thus, the period prescribed under section 11B of the Central Excise Act, 1944 had expired long before the above were clarification was issued. Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inlcude any service provided for storage of agricultural produce or any services provided by cold storage. Therefore, as and when these provisions of the Finance Bill come into effect the above types of cases shall be liable to service tax under the head ''storage and warehosuing''. 2. Under these circumstances, M/s.IMC Limited filed a refund claim before the jurisdictional Assistant Commissioner of Service Tax on 23.07.2002. Later, the petitioner on coming to know of the above development has filed a refund claim on 27.06.2005. The refund claim was filed by the petitioner on the service tax borne by the petitioner for the period between September 1999 to March 2000. 3. During the said period, storage services offered by M/s.IMC limited to the petitioner was not liable to service tax as per the above clarification dated 24.04.2002 of the Central Board of Excise Customs, New Delhi referred to supra . The refund claim of the petitioner was rejected by the Original Authority namely the respondent herein by an Order-in-Orginal No.85/07 dated 02.03.2007 on the ground that the claim was time barred under Section 11B of the Central Excise Act, 1944 as made applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act, 1944 as made applicable to Appeals against orders of the Tribunal under Section 83 of the Finance Act, 1994. 9. He further submits that the Division Bench of this Court in Metal Weld Electrodes Vs. CESTAT, Chennai [2013 Writ.L.R 1041; (2014) 299 E.L.T 3 (Mad)] has held that no Writ Petition is maintainable alone against an order of the Tribunal. He further submits that even under orders passed under Section 35F of the Central Excise Act, only a CMA before a Division Bench by way of an statutory appeal is maintainable and therefore this writ petition is liable to be dismissed. 10. I have considered the arguments advanced by the learned counsel for the petitioner and the respondent. I have also perused the impugned order and the case laws. 11. The Hon ble Supreme Court in UOI Vs. Mafatlal India Ltd. , 1997 (89) ELT 247, while dealing with refund of tax, classified refunds into two categories. The first one on account of unconstitutional levy and second one on account of illegal levy. 12. Former was on account of the provision under which the collection was made is declared as unconstitutional subsequently and the latter on account tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t saying to the contrary was held to have been decided wrongly and were accordingly overruled herewith. [AIR 1959 SC 135 and 1968 (3) SCR 662 overruled; 1969 (2) SCR 824 followed]. [paras 70, 99] 16. It has also held that the very collection and/or retention of tax without the authority of law entitles the person, from whom it is collected, to claim its refund. It also observed that a corresponding obligation is cast upon the State to refund it can also be said to flow from it. This can be called the right to refund arising under and by virtue of the Constitutional provisions, viz., Article 265 of the Constitution of India. 17. At the same time, it held that it does not follow from this that refund follows automatically. Article 265 of Constitution of India cannot be read in isolation. It must be read in the light of the concepts of economic and social justice envisaged in the preamble and the guiding principles of State Policy adumbrated in Articles 38 and 39 of the Constitution, an aspect dealt with at some length at a later stage. The very concept of economic justice means and demands that unless the claimant (for refund) establishes that he has not passed on the burden of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an objection on the ground of limitation and shall be dealt with in accordance with law. This direction shall apply even in cases where the High Court or Civil Court is approached after exhausting the remedy of appeal to Collector (Appeals). He can file an Appeal to C.E.G.A.T. within sixty days from today, after withdrawing the writ petition or the suit, as the case may be. (3) Where, however, a writ petition or suit claiming refund was filed directly in the High Court/Civil Court (i.e., without filing a refund application), the petitioner/plaintiff shall be entitled to withdraw such writ petition/suit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. There is no dispute that the amount was collected and paid to the Department by IMC Ltd. contrary to the law as has been clarified by the Central Board of Excise and Customs by its clarification bearing reference Order No.2/1/2002 - ST dated 24.04.2002 when it has been clarified that storage and warehousing services for goods including liquids and gases was proposed to be made liable to service tax in Finance Bill, 2002. Therefore, as and when the Circular dated 24.04.2002 containing section 65(87) was passed as a Finance Act, service tax become payable under storage and warehousing . 20. Admittedly, collection of service tax by IMC Ltd. during the material period in dispute was contrary to law as was clarified by the Central Board of Excise and Customs vide its Circular dated 24.04.2002. Thus, the collection of the amount was contrary to Article 265 of Constitution of India and therefore, the amount col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons given hereinabove, we hold that the said judgment is per incuriam . At this stage, it is important to note that the Division Bench judgment [Hon ble S.N. Variava and B.P. Singh, JJ.] in the case of National Winder (supra) was delivered on 11-3-2003. However, on 13-11-2003, the Division Bench [Hon ble S.N. Variava and H.K. Sema, JJ.], has referred the matter as stated above to the Larger Bench in the light of conflict which the Division Bench noticed between the earlier judgments of this Court on one hand and Paragraph 104 of the judgment of the Constitution Bench of nine-Judges in the case of Mafatlal Industries Ltd. (supra). Hence, by this judgment, we have clarified the position in law. 25. Though the learned counsel for the petitioner has cited few decisions of the Andhra Pradesh High Court, Punjab and Haryana High Court and that of the Karnataka High Court, I am afraid that these decisions have either not considered the decision of the Supreme Court in Mafatlal Industries Ltd Vs. Union of India , 1997 (89) ELT 247 in its proper perspective or have ignored the same altogether. The decision of the Hon ble Supreme Court in Commissioner Vs. Allied Photographic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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