Tripura High Court
For vs Kvr Construction on 22 February, 2022
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HIGH COURT OF TRIPURA
AGARTALA
Central Ex. App. No. 03 of 2019
For Appellant(s) : Mr. Nihar Dasgupta, Advocate.
Mr. B. Debnath, Advocate.
For Respondent(s) : Mr. Biswanath Majumder, CGC.
Mr. Paramartha Datta, Advocate.
HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Order
22/02/2022
(Indrajit Mahanty, C.J.)
Heard learned counsel for the respective parties.
This matter was admitted by this Court by order dated 24.06.2019
referring to the decisions of the Hon'ble Supreme Court in case of Ambica
Industries Vrs. Commissioner of Central Excise; reported in (2007) 6 SCC 769
and also in case of Canon Steels (P) Limited Vrs. Commissioner of Customs;
reported in (2007) 14 SCC 464. The appeal was admitted on four issues, but, the
learned counsel for the writ petitioner did not press the issues No. (i), (ii) and (iii)
and only pressed the issue No. (iv) which is quoted hereunder:
" (iv) Whether the assessing authority/appellate authority can dismiss
a claim of refund U/S 11B of the Central Excise Act, (limitation),
When the deposit was made out of mistake of fact?"
The petitioner is the Tripura Cricket Association and it is averred
that they had made deposit of service tax by mistake of law. He has further
submitted that the petitioner has not provided any service as defined under section
65B (44) of the Finance Act, 1994 for consideration to the BCCI and it has
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received fewer grants/donation from the BCCI. It is further averred that the
petitioner made an application of refund of service tax which came to be rejected
by the learned Assistant Commissioner on the ground of limitation under section
11B of the Central Excise Act, 1944 which is applicable to service tax and stated
that the refund claimed was made after one year after the relevant date. Thereafter,
various challenges have been made by the petitioner from time to time to the said
order. The petitioner has repeatedly challenged the rejection of his application for
refund before various authorities. The matter remains pending before the
Commissioner of Central Tax (Appeals) in which the Commissioner has directed
transfer of the appeal through 'Call Book' till outcome of the case similar in nature
in CA No.2980-2981/2014 which is pending before the Hon'ble Supreme Court.
Learned counsel for the petitioner placed reliance on the judgment
rendered by the Hon'ble Karnataka High Court in case of Commissioner of
Central Excise (Appeals), Bangalore Vs. KVR Construction, reported in
2012(26) S.T.R. 195 (Kar.). In the said judgment, the Hon'ble Karnataka High
Court came to the conclusion that section 11B of the Central Excise Act was not
applicable to a refund application filed by the petitioner based on mistake of law.
The Hon'ble Karnataka High Court fairly held that section 35B(1)(b) was
inapplicable. Learned counsel for the petitioner further relied upon the challenge
to the said order of the Hon'ble Karnataka High Court before the Hon'ble
Supreme Court in case of Commissioner V. KVR Construction, reported in 2018
(14) G.S.T.L. J70 (S.C.). The Hon'ble Supreme Court dismissed the challenge to
the order passed by the Karnataka High Court referred hereinabove and came to
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hold that the Karnataka High Court had held that the provision of limitation under
section 11B of the Central Excise Act, 1944 would not apply for refund of service
tax paid by mistake on exempted services even though the assessee had filed claim
under Form-R which shows that they had treated such payment as duty but later on
claimed it as not a duty. Mere payment of an amount by the assessee and
acceptance by the Department would not regularize such an amount as duty if it
was not actually payable and paid by mistake. It was further held that writ petition
against the order of Commissioner (Appeals) rejecting refund of Service tax paid
on exempted services as time-barred, is maintainable and cannot be rejected on the
ground of availability of alternate appellate remedy particularly when payment of
Service Tax exempted services held not be Tax/duty so as to attract the provisions
of Section 11B of Central Excise Act, 1944 and also the provision of Section 35B
of the said Act relating to appeal to Appellate Tribunal is not applicable.
In view of the same, the application is allowed.
The issue framed hereinabove is answered in the positive in favour
of the petitioner and the appellate authority i.e. the Commissioner of Central Tax
(Appeals) is directed to take up the appeal and dispose of the same within a period
of 2(two) months from the date of communication of the copy of this order to the
authorities concerned. It is further clarified that pendency of the Vidarbha Cricket
Association case before the Hon'ble Supreme Court may or may not be of
relevance that the law as it stands as on date and the issue having been confirmed
by the Hon'ble Supreme Court in the Commissioner V. KVR Construction vis-à-
vis the issue of limitation, we find no justifiable ground for the Commissioner of
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Central Tax (Appeals) to remit the case to the 'Call Book'. Hence, necessary
immediate direction be given to return the file from the 'Call Book' and take up
the matter immediately and dispose of the same within the time as directed
hereinabove.
The petition stands disposed of. Pending application if any, also
stands disposed of.
(S.G.CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ
Sabyasachi G
