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TMI Blog2023 (5) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... e amounts paid by the appellant is an excess amount over and above the tax liability - it has been categorically held relevant date as stipulated in Section 11B (as made applicable to service tax matters) is not applicable wherein the amounts are paid in excess and collected without any authority of law. The Hon ble Madras High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE, CHENNAI VERSUS M/S. ELECTRO STEEL CASTINGS LTD CESTAT, CHENNAI [ 2013 (8) TMI 199 - MADRAS HIGH COURT] has held that Thus, the facts involved in both the cases decided by the Supreme Court were identical and the Supreme Court, while dealing with the issue relating to period of limitation, uniformly held that no limitation was applicable to the payment made under protest. The Hon ble Supreme Court in the earlier judgment clearly observed that the payment made, when the assessee has been challenging the earlier levy of duty, is deemed to be under protest and not otherwise. Hence, the combined appreciation of both the cases decided by the Supreme Court would lead to an irresistible inference that the payment made herein is also deemed to be under protest and no limitation is applicable and the clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of tax the claims are rejected. 2. Heard both sides. 3. Learned Chartered Accountant appearing on behalf of the appellant submitted that while he was liable to pay service tax only on the 80% of the value, he was forced on the 100% of the value. Aggrieved by this, he had filed an appeal with the Commissioner (Appeals) who set aside the demands to the extent of 20% demand. Based on this order, refund claims were made within one year from the date of Commissioner (Appeals) order, which was well within time as per Section 11B which is made applicable to Section 83 of the Finance Act. The claim was rejected by the original authority and the Commissioner (Appeals) on the ground that the amounts paid was in excess of the taxable amounts and the Commissioner (Appeals) order had no relevance. The Commissioner (Appeals) rejected their claim stating that the amounts paid in excess on his own account, the relevant date would be the date of payment of tax and accordingly, rejected the refund claims. Appellant claims that on the one hand, department compelled him to pay more than what he was liable to pay and now, since the Commissioner (Appeals) order is in his favour they reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of excise may make an application for refund of such duty to the0 [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date [in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991), such application shall be deemed to have been made under this sub-section as amended by the Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act:] [Provided further that] the limitation of 8[one year] shall not apply where any duty has been paid under protest. [***] [Explanation. For the purposes of this section, - (A) refund includes rebate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer to any other amounts collected without authority of law. In the case on hand, admittedly, the amount sought for as refund was the amount paid under mistaken notion which even according to the department was not liable to be paid. It has been thus observed that what one has to see is whether the amount paid by the assessee under a mistaken notion was refundable. Mere payment made by the assessee will neither validate the nature of payment nor the nature of transaction. The same could not make it a service tax. When there is a lack of authority to collect such service tax not liable to be paid by the assessee, it would not give the department the authority to retain the amount paid by the assessee. Therefore, mere nomenclature would not be an embargo on the right of the petitioner to demand refund of payment made under a mistaken notion. This judgment has been confirmed by the Hon ble Apex Court dismissing the appeal filed by the Revenue. Having regard to the facts and circumstances of the case, this judgment is squarely applicable to the case on hand. The Honourable High Court has clearly held that When there is a lack of authority to collect such service tax not lia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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