No limitation on action for refund of service tax paid under wrong impression: Delhi HC

Delhi High Court: A Division Bench comprising of S. Ravindra Bhat and Anu Malhotra, JJ. allowed an appeal for refund of service tax paid by the appellant under wrong impression.

The appellant was a registered society set up by the Ministry of Finance, Planning Commission, several State Governments and distinguished academicians. It was set up as a centre for research in public economics and policies. Concededly, at the relevant time, service tax was not payable for any of the functions or work undertaken or performed by the appellant-assessee. Tax was levied upon the appellant under a wrong impression that it was liable to pay service tax. Subsequently, upon inquiry, it was informed by the Central Board of Excise and Customs (CBEC) that its activities were non-taxable. Soon thereafter, the appellant sought refund of the tax deposited. The Deputy Commissioner refunded part of the amount but disallowed refund of Rs 11,49,090 on the ground that the application was filed after a lapse of one year and was thus barred by limitation. The appellant unsuccessfully filed an appeal to Customs, Excise and Service Tax Appellate Tribunal (CESTAT). Aggrieved by the same, the appellant preferred the instant appeal.

The High Court perused the record and considered the submissions made by the parties. The Court found favour with the submissions of the appellant that when the amount in question was never payable as there was no levy at all, denying the refund of part payment did not arise and the general principle of limitation would be applicable only from the date of discovery of the fact of mistaken payment. Reference was also made to the Supreme Court decision in CCE v. Krishna Carbon Paper Co., (1989) 1 SCC 150. In the view of the Court, the CESTAT fell into an error while passing the order impugned. Accordingly, the appeal was allowed and the Court set aside the order impugned. The appellant was held entitled to refund of entire amount with proportionate interest. [National Institute of Public Finance and Policy v. CST, 2018 SCC OnLine Del 10812, dated 23-08-2018]

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