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TMI Blog2024 (10) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... % tax liability later on and it was not an interpretation issue or mistake of law that they ended up paying under RCM basis. From the facts, it appears that they had, at that point of time, rightly interpreted their liability and discharged the same under RCM basis. Therefore, it is not a case of payment under mistake of law rather it is a case of a double payment of tax due to some communication gap or for that matter, due to reconciliation of accounts at a later date between service provider and the Appellant. Be the case as it may, the fact remains that the refund of any nature has to be within the four walls of statutory provisions governing the grant of refund, which may arise on account of various situations including mistake of law or mistake of fact. The question is under what circumstances the limitation would not be applicable while considering the claim filed by the claimant before the statutory authority, who is a creature of statute and has to examine the claim within the provisions of the statute itself. The statute has clearly provided for limitation within which a claim can be filed and the authority in power to consider and grant such refund has to consider the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joint Venture (JV) of M/s Sterlite M/s Continental Transtech Pvt Ltd, as an Association of Persons (AOP) and were therefore required to pay the Service Tax under reverse charge mechanism in terms of provisions under relevant rules and notifications. 3. The Original Authority, inter alia, examined the provisions of Notification 15/2012-ST dt.17.03.2012 and, inter alia, observed that in respect of services provided or agreed to be provided by way of works contract by any individual, Hindu Undivided Family or proprietary firm or partnership firm, whether registered or not, including association of persons; located in the taxable territory to any company formed or registered under the Companies Act, 1956 or a business entity registered as body corporate located in the taxable territory, 50% of the Service Tax liability is payable by the person providing the service and 50% is payable by the person receiving the service. He also observed that Assessee themselves have submitted at the time of personal hearing that service provider is JV firm but due to unstructured agreement, they have treated the service providers as AOP based on Advance Rulings and accordingly, paid 50% of Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds of Appeal that the Order passed by the Adjudicating Authority was only on the ground that the Appellant failed to file refund claims within time limit and therefore, hit by time bar. Whereas, in the light of the judgment passed by this Bench in the case of M/s Credible Engineering Construction Projects Ltd Vs CCT, Hyderabad [2022 (9) TMI 844 CESTAT Hyderabad], their Appeals are liable to be allowed. He further submits that the said judgment was appealed against before Hon ble Telangana High Court in Central Excise Appeal No.03/2023, where Hon ble Telangana High Court dismissed the Appeal filed by the Revenue. He also informed that in their own case, Commissioner (Appeals), vide Order dt.28.07.2023 allowed their Appeal with consequential relief which was earlier rejected by the Original Authority. He has also relied on plethora of judicial pronouncements including the judgment of Hon ble Supreme Court in the case of Mafat Lal Industries Vs UOI [1996 (12) TMI 50] in support that when the amount or tax is paid under mistake of law, the limitation prescribed under the statute i.e., either Central Excise or Service Tax would not get attracted. 7. On the other hand, learned A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, would be within the purview of Section 11B. Therefore, even if it is presumed that the Service Tax was paid erroneously or mistakenly, it will still be regulated by the provisions under Section 11B, which has clearly not been followed by the Appellant. He has also relied on the judgment of Hon ble Delhi High Court in the case of HT Media Limited Vs CST [2017 (6) GSTL 266 (Del)], wherein, inter alia, the Court had distinguished the earlier order of Hon ble High Court in the case of Hind Agro Industries Ltd Vs CC [2008 (221) ELT 336 (Del)]. Similarly, he has relied on the judgment of Hon ble Bombay High Court in the case of Andrew Telecom (I) Pvt Ltd Vs CC CE, Goa [2014 (34) STR 562 (Bom.)], wherein, inter alia, the judgment of Hon ble High Court of Karnataka in the case of CCE, Bangalore Vs KVR Construction [2012 (26) STR 195 (Kar.)] was distinguished and it was held that limitation under statute will be applicable even in the case of mistake of law. 10. Heard both the sides and perused the records. 11. Since the common issue in both the Appeals are identical and involves similar factual matrix, I proceed to take up both the Appeals together. The issue in both these Appeals lies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Department has not disputed that tax has been paid twice, which is not correct as the Orders-in-Original clearly rejected the claim on merits as well. Since they have not brought any additional grounds in their support that they had wrongly paid the duty applicable on RCM basis, their claims for refund are rightly held to be not eligible by the Original Authorities. I do not find any substantive ground in their grounds of Appeal to interfere with this observation of the Original Authorities, as upheld by the Commissioner (Appeals). 14. However, the main issue which the Appellants have been arguing is that in the facts of the case, their claims cannot be considered as time barred in view of plethora of judgments. They have relied on judgment of Hon ble Karnataka High Court in the case of CCE, Bangalore Vs KVR Construction (supra). On going through the said judgment, it is observed that the Hon ble High Court has considered only Para 113 and Para 137 of Mafat Lal Industries Vs UOI judgment (supra), which is a decision of only two Hon ble Judges and therefore, the decision in KVR Construction case is per incuriam . Further, even the Department s Special Leave Petition (SLP), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hon ble Supreme Court in the case of Mafat Lal Industries Vs UOI (supra) has not been considered. Most of the judgments of the Tribunal cited by the Appellants are also based on either decision in the case of KVR Construction (supra) or in the case of 3E Infotech Vs CESTAT, Chennai (supra). This Bench, in the case of Karvy Investor Services Ltd Vs CCE ST, Hyderabad- II [2016 (43) STR 610 (Tri-Hyd)] relied upon by the Appellants had held that limitation is not applicable relying on the decision in the case of KVR Construction as well as Hon ble Kerala High Court s decision in the case of Geojit BNP Paribas Financial Services Ltd Vs Commissioner [2015 (39) STR 706 (Ker)]. This Single Member Bench judgment of Hon ble Kerala High Court was subsequently overruled by the Division Bench of Hon ble High Court of Kerala in the case of Southern Surface Finishers Vs CCE, Muvattupuzha [2019 (28) GSTL 202 (Ker)]. 17. Therefore, even assuming that there is double payment of tax, which incidentally has not been accepted by the lower Authorities nor any specific decision on this point has been made by the Commissioner (Appeals), the claims have to be examined from the point of view of whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), the reliance placed by learned AR on the following judgments, which are also quite relevant to the present issue and its ratio are applicable to the facts of the present case:- a) MGM International Exports Ltd Vs Assistant CST, Chennai (2021-TIOL- 989-HC-MAD-ST) b) Cannanore Handloom Exports Vs CCE, C ST, Calicut [2021 (44) GSTL 345 (Ker)] c) Uniroyal Marine Exports Ltd Vs CCE, Kozhikode [2021 (54) GSTL 156 (Ker)] d) CC, NS-II Vs Purab Textile Pvt Ltd [2019 (365) ELT 285 (Bom)] e) M/s Oil Natural Gas Corporation Ltd Vs CGST, CE, Tiruchirapalli [Excise Appeal No. 41682/2015 Final Order No.40696/2024 dt.20.06.2024] 19. On going through these judgments, it is obvious that the Hon ble High Courts have ruled generally that even if there is a mistake committed by the Assessee, whether on account of law or facts, the remedy has to be only under the statute and therefore, provision of limitation, as provided under the statute, will have to be applied. In the case of Uniroyal Marine Exports Pvt Ltd (supra), the Hon ble High Court of Kerala in Para 5 and Para 6 (reproduced below for ease of reference) have clearly upheld the view that there would be applicability of time limit even for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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