M/s Avadh Rail Infra Limited Versus Commissioner, GST & Central Excise, Lucknow
Central Excise
2018 (7) TMI 1114 – CESTAT ALLAHABAD – TMI
CESTAT ALLAHABAD – AT
Dated:- 11-5-2018
APPEAL No. E/70205/-2018-EX[SM] – A/71086/2018-SM[BR]
Central Excise
Mr. Anil G. Shakkarwar, Member (Technical)
Shri A. P. Mathur, Advocate for Appellant
Shri Gyanendra Kumar Tripathi. Assistant Commissioner (AR) for Respondent
ORDER
Per: Anil G. Shakkarwar
The present appeal is directed against Order-in-Appeal No. 211-ST/APPL-LKO/LKO/2017 dated 06/09/2017 passed by Commissioner (Appeals) GST & Central Excise, Lucknow.
2. The brief facts of the case are that the appellant was registered under Service Tax for Goods Transport Agency Service and was paying Service Tax on the said service under “Reverse Charge Mechanism”. Through their letter 26/05/2015 appellant submitted a claim for refund of Rs. 6,57,070/-. The appellant contended that during the period from July, 2012 to March, 201
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4, the Refund Application was time barred. The appellant was called upon to show cause as to why the said refund application should not be rejected. The said claim was adjudicated through Order-in-Original dated 23/05/2016, wherein the Original Authority has held that the refund claim was hit by limitation and therefore, rejected the refund claim. Aggrieved by the said order appellant preferred appeal before Commissioner (Appeals), which was decided through impugned Order-in-Appeal. The ld. Commissioner (Appeals) has held that out of the claim of refund Rs. 2,49,450/- were barred by limitation and the entire refund claim was hit by bar of unjust enrichment for the reason that the appellants, neither at the stage of adjudication proceedings nor at the appeal stage could prove by any documentary evidence that the incidence of excess payment had not been passed on by him to any other person. Aggrieved by the said order, appellant is before this Tribunal.
3. Heard ld. Counsel – Shri A.P.
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on Versus Commissioner of Central Excise, Nashik reported at 2018 (9) G.S.T.L. 8 (Bombay), wherein it was held that the amount paid as duty by mistake of law is not covered by Section 11B of the Central Excise Act, 1944, so far as limitation is concerned. He has also relied on ruling of Hon'ble Karnataka High Court in the case of K.V.R. Constructions Versus Commissioner of Central Excise, Bangalore reported at 2010 (17) S.T.R. 6 (Karnataka) wherein it was held that if an amount paid by assessee to Revenue considering Service Tax, it is to be treated as deposit at the hands of Government and over such amount limitation under Section 11B of the Central Excise Act, 1944, does not apply.
4. Heard the ld. A. R. for Revenue, who has supported the impugned Order-in-Appeal.
5. Having considered the rival contentions and on perusal of the facts on record, I find that the contentions raised by ld. Counsel for the appellant are sustainable in law. I, therefore, hold that impugned Order-in-A
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