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TMI Blog2025 (4) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 2004 and Section 136 read with 138 of the Finance Act, 2007 provided for levy of Education Cess (EC) and Secondary & Higher Education Cess (SHEC) on all excisable goods specified in the 1st Schedule to the Central Excise Tariff Act, 1985. 2.2 The Appellant was also required to pay Oil Industries Development (OID) Cess which levied under Section 15(1) of the Oil Industry (Development) Act, 1974 on the crude oil produced by the Appellant. 2.3 The Appellant was of the view that OID Cess is a duty of excise and that EC and SHEC is required to be paid on such Cess, thus, the Appellant paid EC w.e.f. 09-07-2004 and SHEC w.e.f. 01-03-2007 on OID Cess. Based on circular bearing M.F.(D.R.) Letter F.No. 345/2/2004-TRU (Pt.) dated 10.08.2004, it was the Appellant"s understanding that EC and SHEC should be paid on OID Cess. 2.4 Thereafter, Circular No. 978/2/2014-CX dated 07-01-2014 was issued by the CBIC clarifying that EC and SHEC can be levied only on those duties of excise which are both levied and collected by the department of Revenue. A cess levied under an Act which is not administered by the Ministry of Finance (Dept. of Revenue) but only collected by the department o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... January 2013 to December 2013) only and the balance claim was rejected as time barred. 2.12 Being aggrieved by the Order-in-Appeal, the appellant has preferred the present appeal before us. 3. The ld.Counsel for the appellant submits that the instant dispute before this Tribunal relates to the period July 2004 to December 2012 for an amount of Rs.72,49,62,142/- and the only question to be decided is whether the instant claim of refund is hit by limitation period under Section 11B of the Central Excise Act, 1944 when EC and SHEC has been paid by the Appellant under mistaken interpretation of law. He submits that the issue is no longer res-integra and the limitation period prescribed under Section 11B of the Central Excise Act, 1944, is not applicable to the instant facts of this case. 3.1 He submitted that the exact same issue arising in the instant case i.e., whether the claim of refund of EC and SHEC paid on OID Cess based on Circular No.978/2/2014-CX dated 07-01-2014 is hit by limitation period under Section 11B of the Central Excise Act, 1944, has already been decided by the Hon'ble Gujarat High Court in Joshi Technologies vs. Union of India 2016 (339) ELT 21 (Guj). The Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anctioned to the petitioner. 3.9 Further, reliance is placed on the following judgements of the High Courts across various jurisdictions wherein it has been held that for refund of tax/duty paid mistakenly, when the levy itself is not applicable, the time limit under Section 11B of Central Excise Act, 1944 will not apply and such amount will not partake the character of duty/tax : (i) Commr. of C. Ex. (Appeals), Bangalore vs. KVR Construction, 2012 (26) STR 195 (Kar), SLP dismissed reported at 2018 (14) GSTL J70 (SC) (ii) Way2wealth Brokers Pvt.Ltd vs. Comm. of C.T., Bengaluru, 2022 (61) GSTL 349 (Kar) (iii) Hind Agro Industries Limited vs. Commissioner of Customs, 2008 (221) ELT 336 (Del), (iv) Alar Infrastructures Pvt. Ltd vs. Commissioner of. C. Ex., Delhi-I, 2015 (40) STR 1066 (Del), (v) National Institute of Public Finance and Policy vs. Commissioner of Service Tax, 2019 (20) GSTL 330 (Del), and (vi) Commissioner of Central Excise and Service Tax v. Oriental Insurance Company Limited, 2023-TIOL-1252-HC-DEL- ST, (vii) Parijat Construction vs. Commissioner of Central Excise, Nashik, 2018 (359) ELT 113 (Bom) (viii) 3E Infotech vs. CESTAT, Chennai, 2018 (18) GSTL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... barred by limitation. 5. Heard both the parties and considered the submissions. 6. We find that the facts, which are not in dispute, are that the appellant had paid entire NCCD in terms of Section 136 read with 7th Schedule of the Finance Act, 2001 and Section 91 read with Section 93 of the Finance Act, 2004 and Section 136 read with 138 of the Finance Act, 2007 provided for levy of Education Cess (EC) and Secondary & Higher Education Cess (SHEC) on all excisable goods specified in the 1st Schedule to the Central Excise Tariff Act, 1985. The appellant was also required to pay Oil Industries Development (OID) Cess, which are levied under Section 15 (1) of the Oil Industry (Development) Act, 1974 on the crude oil produced by the appellant. The appellant paid EC w.e.f. 09.07.2004 and SHEC w.e.f. 01.03.2007 on OID Cess. Based on the Circular dated 10.08.2004 and as per the appellant"s understanding, the EC and SHEC should be paid on OID Cess. Thereafter, vide Circular No.978/2/2014-CX dated 07.01.2014, a clarification was issued by CBIC clarifying that EC and SHEC can be levied only on those duties of Excise which are both levied and collected by the Department of Revenue. A Cess le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Vasudha Bommireddy has clearly held that when refund is claimed of any amount deposited under a mistake of law, the limitation provided in section 11B of the Excise Act would not be attracted. 36. The legal position that the view expressed by the jurisdictional High Court would prevail over the view of other High Courts has been clearly laid down by a Lager Bench of the Tribunal consisting of five Hon'ble Members in Collector of Central Excise Chandigarh vs. Kashmir Conductors and the observations are: "10. The question as to how the Tribunal should proceed in the face of conflicting decisions of High Courts has been considered in M/s. Atma Steels P. Ltd. and others v. Collector of Central Excise, Chandigarh reported in 1984 (17) E.L.T. 331 wherein the Larger Bench consisting of five Members held that, in view of its All India jurisdiction and peculiar features, the Tribunal cannot be held bound to the view of any one of the High Courts, but has the judicial freedom, to consider the conflicting views, reflected by different High Courts, and adopt the one considered more appropriate to the facts of a given case before the Tribunal. The Tribunal also indicated that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressed any view in regard to the issue, then that view has to be followed. 38. The inevitable conclusion that follows from the aforesaid discussion is that the limitation contemplated under section 118 of the Excise Act would not be attracted in a case where any amount, even though it is not payable as service tax, is paid under a mistaken notion." 11. The said order of this Tribunal was affirmed by the Hon'ble Telangana High Court, wherein the Hon'ble High Court has observed as under : "9. We have heard the matter at length. It is seen that the single question raised by Mr.Dominic Fernandes, leamed counsel is no more res integra. In the manner proposed question is framed, it is not in dispute that service lax was not payable by the assessee. This question came up for consideration before the Delhi High Court in Hind Agro Industries Limited v. Commissioner of Customs 2008 (221) ELT 336 (Del.). After considering the judgment of the Hon'ble Supreme Court in case of Mafatlal Industries Ltd. (supra 1), the Delhi High Court held that the judgment of Mafatlal Industries Ltd. (supra 1) nowhere talks of a situation where the refund of a tax paid under the relevant Act albeit erro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue relied on the decision of the Madhya Pradesh High Court in the case of MDP Infra (India) Private Limited (supra), wherein the facts of the case are as under : "4. The appellant holds service tax registration and paying service tax under the category of "Works Contract Services". During the period 1-3-2015 to 30-9-2015 the appellant had paid Rs. 25,49,317/- towards Service Tax and interest of Rs. 57,716/- on the following work contracts :- "(i) Construction of EWS houses for Special Area Development Authority (A Government Authority) vide work order No. 02/SADA/2014-15, Agreement No. 04, dated 22-12-2014. (ii) Construction of LIG houses (Affordable Housing) for Indore Development Authority vide Four/Accounts/12-13/70006, dated 19-11-2012, Agreement No. 82/2012-13/IDA. (iii) Construction of Model School Building at Morena for PWD, PIU Division-4 Gwalior (Department of Government of Madhya Pradesh) work order No. : 2/2012-13, dated 15-6-2012, E-tender No. 14204 and office No. 1589. (iv) Construction of Model School Building at Sabalgarh for PWD, PIU Division-4 Gwalior (Department of Government of Madhya Pradesh) work order No. 2/2012-13, dated 15-6-2012, E-tender No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lishment; or (iii) an art or cultural establishment; (c) a residential complex predominantly meant for self-use or for the use of their employees or other persons specified in Explanation 1 to clause (44) of section 65B of the said Act, under a contract entered into before the 1st day of March, 2015 and on which appropriate stamp duty, where applicable, had been paid before that date." (2) Refund shall be made of all such service tax which has been collected but which would not have been so collected had sub- section (1) been in force at all material times. (3) Notwithstanding anything contained in this Chapter, an application for the claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2016 receives the assent of the President." 10. In these set of facts, the Hon'ble High Court has held as under : "16. As regard to substantial question of law at "B", the said question in given facts of present also does not arise for consideration. The appellant was under legal obligation to deposit the service tax in respect of the service rendered qua non- exempted service. The contentions that it was beyond the control of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... langana High Court in the case of Credible Engineering (supra), we hold that the refund claims filed by the appellant, are not hit by the provisions of Section 11B of the Central Excise Act, 1944 as the service tax has been paid by the appellant under mistake of law. Therefore, the Issue No.(b) is also answered in favour of the appellant." 13. The said decision of this Tribunal has been affirmed by the Hon'ble Calcutta High Court as reported in 2025-TIOL-88-HC-KOL-ST, wherein the Hon'ble Calcutta High Court in Civil Appeal Nos.CEXA/56/2024 (IA NO.GA/1/2024) & CEXA/57/2024 (IA NO.GA/1/2024), has observed as under : "17. Thus, we are in full agreement with the view taken by the learned Tribunal holding that the service, which was rendered by the assessee to the Kerala Water Authority, will not be a taxable service under Works Contract Services. Having held so, the question would be as to whether the other issues regarding the applicability of provisions of Section 11B of the Central Excise Act, 1944, is a case of unjust enrichment, has to be considered. 18......................................................................................................... 19. The legal pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.978/2/2014-CX dated 07.01.2014 as held by the Hon'ble Gujarat High Court in the case of M/s Aculife Health Care Private Limited and Another Vs. Union of India reported in 2025-VIL-87-GUJ, wherein the Hon'ble Gujarat High Court has observed as under : ""4.2 During July, 2017 to July, 2022, the Petitioner-Company has deposited a total sum of Rs.45,14,300/- as tax on notice pay recovery, in lieu of various employees who left the employment. This amount of tax has been deposited by the Petitioner from its own pockets and the GST on the amount of notice pay recovery was deposited by the Petitioner as and when such recovery was made. The amount deposited as GST, or any part thereof, has not been recovered by the Petitioner-Company from any of the employees leaving the employment. 4.3 The Union Government issued a Circular No.178/10/2022- GST dated 03.08.2022, and clarified that such amount and such recovery was not chargeable to GST. At para 7.5 of this circular, the Government clarified that forfeiture of salary or payment of the bond amount in the event of an employee leaving employment before the minimum agreed period was not taxable. Hence, the amount of Rs.45,14,300/- deposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed not pay tax on the transaction in question, which was clarified not to be a "Service" under the CGST Act.................................................... 10. To sum up, just as citizens have to diligently pay tax which are legally due to the State, equally, as a corollary of the aforesaid statement, the State is not entitled to unjustly enrich itself with amounts collected from citizens which are not sanctioned as "Tax" within the meaning of Article 265 of the Constitution of India." 17. We further take note of the fact that the appellant"s own case as reported in 2017 (354) ELT 577 (Guj.), again on the same issue, the Hon'ble Gujarat High Court examined the issue and observed as under : "8. For the purpose of appreciating the controversy in issue, it may be apposite to refer to the decision of this Court in the case of Joshi Technologies International, INC-India Projects v. Union of India (supra), wherein this Court has held thus : "Merely because the provisions of the Central Excise Act, 1944 and the rules framed thereunder for collection and refund viz., the machinery provisions have been incorporated in the OID Act for collection and refund of the cess levied ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently, the said provisions have no applicability to the facts of the present case. The petitioner, therefore, cannot be said to have been liable to pay Education Cess and Secondary and Higher Secondary Education Cess under the above provisions. * In the facts of the present case, the refund is claimed on the ground that the amount was paid under a mistake of law and such claim being outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. The petitioner was, therefore, justified in filing the present petition before this Court against the order passed by the adjudicating authority rejecting its claim for refund of the amount paid under a mistake. * Since Oil Cess is not a duty of excise, the amount paid by the petitioner by way of Education Cess and Secondary and Higher Secondary Education Cess, cannot in any manner be said to be a duty of excise inasmuch as what was paid by the petitioner was not a duty of excise calculated on the aggregate of all the duties of excise as envisaged under the provisions of Section 93 of the Finance Act, 2004 and Section 138 of the Finance Act, 2007. Thus, the amount paid by the petitioner would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating authority was not satisfied with the Chartered Accountants certificate and the other material produced by the petitioner, he could have called upon the petitioner to produce further documentary evidence in support of its claim that it had not passed on the incidence of duty to the purchaser. However, without affording a reasonable opportunity to the petitioner to produce documentary evidence in support of its claim that there was no unjust enrichment, the adjudicating authority was not justified in holding that there was unjust enrichment. Therefore, the finding that the petitioners", claim is hit by unjust enrichment cannot be legally sustained." 9. From the facts as emerging from the record, it is evident that the above decision would be squarely applicable to the facts of the present case. It is, however, an admitted position that the above referred decision of this Court which was rendered on 16-6-2016 is subsequent to the passing of the Order-in-Original dated 28-4- 2015, and therefore, was not available at the time when the Order-in-Original came to be passed. It appears that the order-in- appeal having been made on 29-6-2016, soon after the judgment and order da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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