Page 229 - GSTL_2nd April 2020_Vol 35_Part 1

2020 ] TANNA ELECTRIC CO. v. COMMISSIONER OF CGST, MUMBAI CENTRAL 131
2. The issue to be decided is whether the refund of Cenvat credit
claimed by the Appellant is beyond the limitation period as prescribed under
Section 11B of the Central Excise Act, 1944 as applicable to Service Tax vide Sec-
tion 83 of the Finance Act, 1994?
3. The facts involved in the Appeal are as follows. The Appellants are
providing Erection, Commissioning and Installation Service. They filed two refund
claims on 14-2-2014 total amounting to Rs. 1,25,147/- (Rs. 67,041/- + Rs. 58,106/-)
for the period 8-10-2012 and 8-1-2013 under Section 11B of the Central Excise Act,
1944. Upon examination of claims it was noticed that the claim for the period 8-
10-2012 should have been filed on or before 7-10-2013 whereas the other claim
dated 8-1-2013 should have been filed on or before 7-1-2014 in view of Section
11B ibid as made applicable to Service Tax by virtue of Section 83 of the Finance
Act, 1994. Since admittedly both the claims were filed on 14-2-2014, which is
more than one year from the date of payment of duty, therefore a show cause
notice dated 25-7-2014 was issued as to why the aforesaid refund claims should
not be rejected being time barred. The Adjudicating Authority vide Order-in-
Original dated 30-12-2014 rejected the refund claims being time barred and the
said order was upheld by the first Appellate Authority i.e. the Commissioner
vide impugned order dated 24-5-2018.
4. I have heard Learned Chartered Accountant for the Appellant and
Learned Authorised Representative for the Revenue and perused the records.
The Learned Chartered Accountant submitted that the Appellants provided the
service in issue to (i) Department of Atomic Energy, Government of India; and
(ii) Municipal Corporation of Greater Mumbai (MCGM) which was fully ex-
empted from tax vide clause 12A of Notification No. 25/2012 w.e.f. 1-7-2012. Ac-
cording to him, since the period was immediate aftermath of Negative List in
Service Tax w.e.f. 1-7-2012, therefore there was confusion and in absence of
proper legal advice the appellants deposited the tax in question mistakenly un-
der the belief that it was payable. Coming to know at a later stage that they are
not liable to pay the tax on 14-2-2014 the Appellants filed the refund claim. Ac-
cording to Learned Chartered Accountant it was not a duty, rather it is like de-
posit with the Government and therefore Section 11B ibid has no application on
the facts of the case. In support of his submission that the limitation of one year is
not applicable, the Learned Chartered Accountant relied upon the decision of the
Hon’ble Supreme Court in the matter of Mafatlal Industries Ltd. v. UOI; 1997 (89)
E.L.T. 247 (S.C.). He further submitted that the Appellant did not charge the Ser-
vice Tax from the aforesaid Government/local authority and that there was no
question of any unjust enrichment. Learned Chartered Accountant also submit-
ted that the Learned Commissioner while passing the impugned order, has erred
in relying upon the law laid down by the Hon’ble Supreme Court in the matter
of Asstt. Collector of Customs v. Anam Electrical Manufacturing Co.; 1997 (90) E.L.T.
260 (S.C.). He also submitted that in similar circumstances in Appellant’s own
case, for a different period, the refund claim was upheld by another Commis-
sioner. He placed reliance on the following case laws in support of his submis-
sions:- (i) CCE (Appeals), Bangalore v. KVR Construction; 2012 (7) TMI 22 (Kar.) =
2012 (26) S.T.R. 195 (Kar.); (ii) M/s. Parijat Construction, M/s. Giriraj Construction v.
CCE; 2017 (10) TMI 659 (Bom.) = 2018 (359) E.L.T. 113 (Bom.) = 2018 (9) G.S.T.L. 8
(Bom.); (iii) Pallavapuram Tambaram MSW P. Ltd. v. C.S.T., Mumbai-II; 2018 (6)

GST LAW TIMES  2nd April 2020  293