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TMI Blog2008 (6) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Management Consultant Services. 3. They filed a refund claim of Rs. 6,55,670/- on 09.10.2003, for Service Tax erroneously collected and paid by them for the period from October1999 to May 2003, on the ground that the service of pilotage provide by them at port of Muldwarka (Minor Port) to their client M/s. Gujarat Ambuja Cement Ltd. (GACL in short) did not fall under the category of specified services viz. Management Consultancy Services classifiable under Section 65 (53) during the relevant period and it has become specifically classifiable as taxable service under Section 65 (66) with effect from 01.07.2003 and hence the amount paid to the Government should be refunded. 4. The appellants were granted refund of Rs, 1,28,320/- being amount collected as Service Tax and paid between 01.10.2002 to 31.05.2003. The refund was granted by the Assistant Commissioner, vide Order-in-Original dated 24.12.2003 on the ground that the impugned services were out of the purview of Service Tax law. The balance amount of the refund claim of Rs. 5,27,350/- for the period from October, 1999 to September, 2002 was rejected on the ground of limitation and unjust enrichment clause of sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Port services were out of the service tax net during the period in question, so any provisions of the Service Tax cannot be attracted to the appellants' case. (iii) In this connection, they relied on the following case laws in their support: (a) Indo Nippon Chemicals Ltd. Vs. Union of India reported in (2005) 3 STJ 1025 (Guj) in which it was held as under: For the purpose of commencement of limitation under clause (f) of Explanation (b) to Section 11B of the Act, even though reversal of Modvat credit was done in February/March 1995, since the mistake was discovered only in November 1995 when the public notice clarifying the legal position came to the knowledge of the petitioner, the period of limitation for the purpose of refund application would commence from November 1995, i.e., on discovery of mutual mistake of the parties. In the circumstances, we hold that provisions of Section 11B of the Act are attracted to the refund application filed by the petitioner. On the question of limitation, our conclusion is that since the claim is based on discovery of mistake, the period of limitation would not commence from the date of reversal of Modvat credit, but from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in which it was held that the theory of mistake of law and consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by the assessee taking advantage of the decision in another assessee's case. All claims of refund ought to be, and ought to have been, filed only under and in accordance with Rule 11/Section 11 B and under no other provision and in no other forum . He also pointed out that the decision in the case of Mafatlal Industries Ltd. has again been affirmed by the Hon'ble Supreme Court in the case of Assistant Collector of Customs Vs. Anam Electrical Manufacturing Co. reported in 1997 (18) RLT 676 (SC)=1997 (90) ELT 260 (SC) while dealing with the question where the refund application was filed by the manufacturer/purchaser beyond the statutory time limit of Section 11B/27 ibid. it was held therein that such petitions must be held to be untenable in law, regardless of any direction to the contrary contained in the order in any appeal, suit or writ jurisdiction. Statutory time limit is not extendable by any authority or court in case of illegal levy. 10. I have carefully considered the rival su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 1996 (17) RLT 907 (SC) (89) ELT 247 (SC) has held as under: ...Where a duty has been collected under a particular order which has become final, the refund of that duty cannot be claimed unless the order [Where it is an order of assessment, adjudication or any other order under which the duty is paid] is set aside according to law. So long as that order stands, the duty cannot be recovered back nor can any claim for its refund be entertained. It is un-understandable how an assessment/ adjudication made under the Act levying or affirming the duty can be ignored because some years later another view of law is taken by another court in another person's case. Nor is there any provision in the Act for re-opening the concluded proceedings on the aforesaid basis. In short, no claim for refund is permissible except under and in accordance with Rule 11 and Section 11B. An order or decree of a court does not become ineffective or unenforceable simply because at a later point of time, a different view of law is taken. If this theory is applied universally, it will lead to unimaginable chaos. Therefore, the theory of mistake of law and the consequent period of limitation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have that powers. It goes without saying that when there is a conflict between the decisions of the Supreme Court and the High Courts/Tribunals on a particular issue, the decisions of the Supreme Court will prevail. 14. Further, the Hon'ble Delhi High Court in the case of M/s. Jumax Foam Pvt. Ltd. Vs. Union of India reported in 2003 (157) ELT 252 (Del.) after discussing the Hon'ble Supreme Court's views in M/s. Mafatlal Industries Ltd. and Anam Electrical Manufacturing Co. cases (cited supra) held that: even if the tax is collected by the authority under the Act by misinterpretating or mis-applying any of the Rules, regulations or Notifications or by an erroneous determination of the relevant facts, i.e. an erroneous finding of the facts, the same may he called an illegal levy, however, even for the refund of the aforesaid amount, a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified there under and within the period of limitation prescribed therein. 15. Since the claim for refund of Rs. 5,27,350/- in the instant case has been filed by the appellants beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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