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TMI Blog2022 (5) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... was in favour of the department, but the Hon ble Apex Court in th said case has discussed in length the various situations of the seeking refund. While appreciating the same this Bench has already held that section 11B of Central Excise Act which is para materia to section 27 of the Customs Act (as has been involved in the present case) and the time bar therein is not applicable to the cases similar to the present one. The amount paid for the same duty but twice, one of the payment has to be refunded. Otherwise also in terms of section 17 of Limitation Act, whenever there is an application for a relief from the consequences of a mistake, the period of limitation would not begin to run until the plaintiff or applicant has discovered the mistake, or could with reasonable diligence, have discovered it. Since from this angle also, the bar of limitation is held to have wrongly applied against the impugned refund application - the duty was for Bills of Entry which were provisionally assessed, the fact remains is that duty which was to be paid at the relevant time has been paid twice, it is opined that remanding the matter back for reconsideration is not justified. The gist of Maf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 974 6 7436555 2,21,426 2,21,426 2,21,153 Total of Finally Assessed BOE 14,95,739 14,95,466 Provisionally Assessed BoE dated 21.11.2014 7 7461606 5,16,473 5,16,473 5,16,473 8 7461263 8,29,310 8,29,310 8,29,310 Total of Provisionally Assessed BOE 13,45,783 13,45,783 C/50001/2022 Details of BoE and Payments Sl. No. Bill of Entry No. Duty Payable in Rs. Amount Paid via Challan No. 52533585 dated 24.11.2014 (IDBI) Duty Paid via Challan No. 56069531 dated 25.11.2014 (SBI) Finally Assessed BOE dated 20.11.2014 1 7449508 11,951 11,951 11,951 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Parijat Construction v CCE, [2018 (359) ELT 113 (Bom)] Mentioning that any amount paid in excess of duty either under mistake, the said amount cannot be termed as duty and as such rule of time bar shall not be applied to refund thereof and any amount paid in excess, same is liable to be refunded. With respect to the provisionally assessed bills, it is submitted that those have not been finally assessed even till date. The fact still remains is that the duty what was to be paid for the said BEs prior to their finalisation stands paid twice. The double payment is therefore, liable to be refunded. With these submissions, the order under challenge is prayed to be set aside and appeal is prayed to be allowed. 6. Per contra, learned Departmental Representative supported the findings of the order under challenge while relying upon the said order. Impressing upon no infirmity in the order therein, both the appeals are prayed to be dismissed. 7. After hearing the rival contentions and perusing the record, it is observed and held as follows:- 1. There is no denial to the fact that Bills of Entry in both these appeals (8 BE in Appeals No. 52292/2021 and 5 BE in Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act (as has been involved in the present case) and the time bar therein is not applicable to the cases similar to the present one. It was held as:- The Section 11 B is applicable only where there is a statutory levy which is either not paid or is short paid. As discussed above, the product of the appellant was exempted under a Notification of the Department. The amount paid by him was therefore not a statutory levy but was made under mistake of law. Hon ble Apex Court in the case Mafatlal Industries Ltd. and Others v. Union of India - 1997 (89) E.L.T. 247 (S.C.) has classified the claim of refund into three groups of categories : (i) Unconstitutional levy (ii) Illegal levy (iii) Mistake of Law In that case, Section 11B of CEA was made applicable on the ground that the petitioner in that case has committed mistake of fact in understanding the Law as he assumed that the transaction for which he has paid tax is covered under law. In the present case, it is not the mistake of fact but the mistake of law that the Notifications extending exemptions to the appellant were not into his notice. Otherwise also, the distinguishing feature for attracting the provisions unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsustainable. 7 . We accordingly allow the present appeals and quash and set aside the impugned order, insofar as it is against the appellant in both appeals. We fully allow refund of Rs. 8,99,962/- preferred by the appellant. We direct that the respondent shall refund the amount of Rs. 8,99,962/- to the appellant within a period of three months. There shall be no order as to costs. 4. Coming to the aspect that the Commissioner (Appeals) has observed that payment which was made on 24.11.2014 was the payment of duty, hence definitely get into the bar of time. It is observed that refund application as was made seeking refund is not for the refund of the amount paid on 24.11.2014. But as submitted by the assessee-appellant in the said application dated 16.11.2015 in both these appeals, that they have paid the double duty payment against the respective Bill of Entry in both the appeals, the prayer is for refund of excess amount paid than the amount of duty of Bes. While submitting before the Bench learned Counsel mentioned that appellant is a big company and double payment did not come to the notice till audit of its records and it is, thereafter, that the impugned applicatio ..... 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