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TMI Blog2024 (9) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 265 of Indian Constitution. As regards the claim of unjust enrichment, the respondent has proved that no tax has been charged from SEZ unit. The invoices issued to SEZ units along with sample copies of tax invoice shows that no service tax was charged from SEZ unit. The respondent has proved that the amount of refund claim has actually been borne by them and sanctioning of the refund would not amount to unjust enrichment. The erroneous payment of the duty/tax under mistake of law would not attract provisions of unjust enrichment as provided in Section 11B of Central Excise Act. There are no infirmity in the impugned order which is upheld by dismissing the appeal of the Revenue - appeal dismissed. - MR. S. S. GARG, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Present for the Appellant: Shri Aneesh Dewan, Advocate Present for the Respondent: Shri Priyamwada Sinha, Authorized Representative ORDER The present appeal filed by the Revenue is directed against the impugned order dated 29.06.2018 whereby the Commissioner (Appeals) has allowed the refund of Rs. 2,53,31,030/- along with interest on delayed payment of refund under Section 11BB of Central Excise Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 6(3) of CCR Rules for the services provided to SEZ Unit. The Respondent has debited the amount of CENVAT Credit inadvertently colouring the same as payment of 6% of the value exempted services under Rule 6(3) of the CCR Rules. Thus, the refund of deposit of the amount of Rs. 2,52,31,030 made by the party colouring the same as an amount paid under Rule 6(3) of CCR is covered under Section 11B of the Central Excise Act, 1944 ('CE Act'). If the refund is sanctioned then the same would amount to unjust enrichment to the Respondent which is in violation of Section 11B(1) of the CE Act. 2.4 Aggrieved by the Order-in-Original appeal was filed and the Commissioner (Appeal) vide the Order-in-Appeal dated 29.06.2018 allowed the appeal in favour of the respondent and set aside the Order-in-Original. Aggrieved by the said order, Revenue has filed the present appeal. 3. Heard both the parties and perused the material on record. 4. Ld. AR appearing for the Revenue filed the written submissions which are taken on record. He further submitted that the refund has rightly been rejected by the adjudicating authority because the amount paid for the service provided to SEZ unit was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent also filed the affidavit of Chartered accountant who has certified that no tax was charged from the SEZ unit. In support of this submission he relied upon the following decisions: ECE Industries Ltd Vs. Commissioner of Service Tax (Appeals-I) Chennai (CESTAT Chennai) 2018 (9) TMI 1139 Commissioner of GST Rohtak Vs. Gawar Construction [P H, HC) 2020 (373) E.L.T. 298 (P H HC) Amrit Learning Vs. Commissioner of Service Tax Delhi (CESTAT Delhi) 2016 (41) S.T.R. 902 (Tri.-Del.) Kirloskar Ebara Pumps Vs. Comm of Central Excise Kolhapur (CESTAT Mumbai) 2015 (38) S.T.R. 488 (Tri.- Mumbai) Commissioner of ST Ahmedabad Vs. S Mohanlal Services (CESTAT Ahmedabad) 2010 (18) S.T.R. 173 (Tri.-Ahmd.). Natraj and Venkat Associates Vs. A.Commissioenr of ST Chennai (Mad HC) 2010 (249) E.L.T. 337 (Mad.). 7. We have considered the submissions of both the parties and perused the various decisions relied upon by the respondent cited (Supra), it will be appropriate to reproduce the extract of Rule 6(3) of the CCR Rules 2004 prevalent during the disputed period which is reproduced herein below: Rule 6 (3) Notwithstanding anything contained in sub rule (1) and (2) the manufacturer of goods o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d against the tenets of Article 265 of the Constitution of India. On the facts and circumstances of this case, we deem it appropriate to pass the following directions:- a) The Application under Section 11B cannot be rejected on the ground that is barred by limitation, provided for under Section. b) The claim for return of money must be considered by the authorities. 10. Similarly, Karnataka High Court in the case of Abdul Samad cited Supra has held in para 7 8 as under: 7. The settled principle of law is mere payment of tax made by the respondent under the mistaken notion would neither validate the nature of payment nor the nature of transaction. The controversy in the present case involves around the applicability of Section 11B of the Act to the facts of the present case. In the KVR Construction, supra, the Division Bench of this Court has categorically observed that when once there was no compulsion or duty cast to pay the service tax, the amount paid by petitioner under mistaken notion, would not be a duty or service tax payable in law. Once it is not payable in law there was no authority for the department to retain such amount which would otherwise be outside the purview of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of limitation for refund laid down in Section 11B of the Act, therefore, cannot apply to such refunds. The petitioner is entitled to refund of such amounts. 8. The only question to be considered is whether the petitioner is entitled to refund of duty paid by it during the period of three years prior to the date of discovery of the mistake or to all refund claimed within three years from the date of discovery of the mistake. We do not find much difficulty on this count. It is well settled that the claim for refund of amounts paid under a mistake of law should be made within the period of three years from the discovery or knowledge of the mistake. The date of payment is not the relevant consideration. Reference may be made in this connection to the decision of a Division Bench of this court in Industrial Plastic Corporation Pvt. Ltd V. U.O.I. 1992 (57) E.L.T. 390. 12. In view of the ratio of the decision of various High Courts we hold that denial of refund claim of the amount wrongly paid is in violation of Article 265 of Indian Constitution. As regards the claim of unjust enrichment, the respondent has proved that no tax has been charged from SEZ unit. The invoices issued to SE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence of certificate by the Chartered Accountant but the Assistant Commissioner had rejected it holding that since the excise duty was 12.36%, the assessee must have passed on the burden to the purchaser. 10. As stated above, in the face of evidence of the assessee and lack of any evidence led in this behalf by the Revenue, this was a purely presumptive finding. 14. Further, in the case of Amrit Learning cited (Supra), the Tribunal has held as under : 6. However, in the present case the value of service remained the same in all the three periods namely before it paid service tax, during the period when it paid service tax, and after that when it stopped paying service tax. This fact certainly provides a lot of gravitas to the appellant's claim that the burden was not passed on to the customers. Then there is a certificate of Chartered Accountant certifying that the burden of tax was not passed on the service recipient. Further, the invoices did not show the component of service tax at all. All these factors put together constitute sufficient weight of evidence in the given facts and circumstances to infer that the appellant has been able to discharge its onus to establish th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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