Page 135 - ELT_15th August 2020_Vol 373_Part 4

2020 ] 3F INDUSTRIES LIMITED v. ASSTT. COMMR. OF CUSTOMS, NAGAPATTINAM 469

Service Tax remitted by it in terms of Rule 2(l)(d)(iv) of the Service Tax Rules,
1994. The aforesaid Rule is in relation to taxable services provided by a person
outside India, who did not have any office in India, the person receiving taxable
service being situated in India. The aforesaid Rule had been challenged before
the Bombay High Court in Indian National Ship Owners Association v. Union of In-
dia, [2009 (13) S.T.R. 235] and had been struck down and the levy held to be un-
constitutional till the enactment of Section 66A on 18-4-2006, that charged tax on
a service recipient. The Court held that there was no authority to levy Service
Tax on a service recipient that too by way of a Rule, in the absence of a charging
provision. Such provision had been introduced only on 18-4-2006 and thus there
would be no incidence of tax till 18-4-2006. The aforesaid decision was confirmed
by the Supreme Court on 14-12-2009.
19. In those circumstances, I had held that where the collection of the
tax is without the authority of law, then the refund of duty collected was also not
bound by the rigour of any provision in that law and thus the provisions of Sec-
tion 11B and the procedure set out therein would not stand attracted. Refund
was thus, directed to be granted with interest from date of judgment of the Su-
preme Court, that is, from 14-12-2009 at the rate of 6 per cent per annum.
20. Reliance on this decision by the petitioner is of no avail in the light
of the judgment in Mafatlal Industries Ltd. (supra) and the distinction made be-
tween a levy that is unconstitutional per se and one which is levied, but disputed
by an assessee who succeeds thereafter in appeal.
21. The dispute in the present case is as to whether Notification dated
3-8-2001 enhancing the rate of tax would be effective from date of Notification or
from date of publication thereof in the Official Gazette, which was 6-8-2001. The
payment of duty is itself is not in question and it is only the rate thereof that is in
dispute. Such difference in the rate of duty as between the period prior to date of
Notification and thereafter, is only one of interpretation by the authorities.
22. A decision of the Division Bench of this Court in the case of Com-
missioner of C. Ex., Chennai-II v. UCAL Fuel Systems Ltd. in W.A. No. 591 of 2011,
dated 21-9-2011 [2014 (306) E.L.T. 26 (Mad.)] and relied upon by the petitioner is
also distinguishable since the amount, of which refund was sought in that case,
did not bear the character of duty at all, but constituted a deposit made by the
assessee during investigation.
23. The refund claim in this case was filed on 3-2-2016, the Application
was returned as defective and the application re-presented on 14-3-2016. These
dates are not in dispute. Thus, in the light of the discussion as above and the
clear stipulation in Section 27B, interest at the rate of 6% shall be paid by the re-
spondents on an amount of Rs. 1,09,11,275/- (Rupees one crore nine lakhs eleven
thousand two hundred and seventy five only) computed from 14-6-2016 till date
of repayment within a period of four (4) weeks from date of receipt of this order.
This writ petition is allowed in the aforesaid terms.

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EXCISE LAW TIMES  15th August 2020  135