Delhi High Court
National Institute Of Public ... vs Commissioner Of Service Tax on 23 August, 2018
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: August 23, 2018
+ SERTA 13/2018
NATIONAL INSTITUTE OF PUBLIC FINANCE AND POLICY
..... Appellant
Through: Mr. Prabhat Kumar Sahu, Advocate
versus
COMMISSIONER OF SERVICE TAX,
..... Respondent
Through: Mr. Harpreet Singh, Senior Standing
Counsel
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
%
S. RAVINDRA BHAT, J. (Oral)
1. The following question of law arose for consideration of this
court:
"Did the Tribunal fall into error in holding that only part
of the amount claimed by the assessee was refundable
and that the other part could not be repaid on account of
expiry of limitation under Section 11(B) of the Central
Excise Act or Section 27(c) of the Customs Act."
2. With consent of counsel for the parties, the appeal is finally
heard today.
3. The appellant is a registered society set up by Ministry of
Finance, Planning Commission, several State Governments and
distinguished academicians as a centre for research in public
economics and policies.
4. Concededly, at the relevant time service tax was not payable for
any of the functions or work undertaken or performed by the
appellant/assessee. In these circumstances, under a wrong impression
that it was liable to service tax, the assessee was levied certain
amounts. Subsequently, upon inquiry, it was informed by CBEC on
13.04.2009 that its activities were not taxable. Soon thereafter, it
sought refund of the amounts deposited. The Deputy Commissioner
refunded part of the amount but disallowed refund of ` 11,49,090/- on
the ground that the application was filed after a lapse of period of one
year. The Assessee unsuccessfully filed an appeal to CESTAT which
appears to have relied upon the judgment of the Supreme Court in
Collector of Central Excise, Chandigarh v. Doaba Co-operative
Sugar Mills, 1988 (37) E.L.T. 478 (S.C.).
5. Counsel for the assessee contends that when the amount in
question was never payable as there was no levy at all, the question of
denying the refund of part payment did not arise and that the general
principal of limitation will be applicable from the date of discovery of
mistaken payment in the present case. So the refund claim is made
within the stipulated period of the limitation.
6. Counsel for the Revenue, on the other hand, relied upon the
judgment of the Supreme Court in Collector of C.E., Kanpur vs.
Krishna Carbon Paper Co., 1988 (37) ELT 480 (SC). Relying upon
the said judgment, it is submitted that the refund claim before a
departmental authority is to be made within the four corners of the
statute and the period of limitation prescribed in the Central Excise
Act and the Rules framed there-under.
7. This court is of the opinion that the CESTAT clearly fell into
error. Krishna Carbon Paper Co. (supra) was a case where principal
duty was payable; excess amount had been paid on a mistaken notion
with respect to the liability for excess production under a notification
which was later discovered to be not correct. In the present case, levy
never applied - a fact conceded by no less than the authority of
CBEC. In these circumstances, the general principle alluded to in
Krishna Carbon Paper Co. (supra) would apply. Consequently, the
appeal has to succeed and is therefore allowed. The appellant shall be
entitled to refund of entire amount with proportionate interest.
8. The appeal is disposed of in the aforesaid terms.
S. RAVINDRA BHAT, J
ANU MALHOTRA, J
AUGUST 23, 2018
pkb
