ORDER
T.K. Jayaraman, Member (T)
1. The appeal and stay petition have been filed against the Order-in-Revision No. 3/ST/07 dated 27.3.07 passed by CCE, C & ST Mysore.
2. In terms of the impugned order, the appellant is required to deposit Rs. 1,38,781/- being the refund erroneously sanctioned to the appellant. The learned Counsel Shri C.R. Raghavendra stated that the appellant paid service tax even on the interest collected under a mistaken notion of law. Later he realized that the Service tax has been paid erroneously. Hence, the refund claim was filed for the amount paid during the period from July 01 to August 03. On a consideration of the facts, the Original Authority sanctioned the entire refund. But the Commissioner of Customs initiated review proceedings and found that a part of the amount paid from July 01 to October 03 was barred by limitation of time. Therefore, he has ordered recovery of an amount of Rs. 1,38,781/- on time bar. The learned advocate cited large number of decisions wherein it was held that when the department collects any levy which is not authorized by law, then the same should be refunded and it will not be hit by the provisions of Section 11-B of the CE Act. He invited my attention to the Apex Court’s decision in the case of Mafatlal Industries 1997 (89) ELT 241(para 20) wherein it was held that in respect of incidental levy, the refund would not be governed by Section 11B of the Central Excise Act. Further he relied on the following case laws.
1) National Tobacco Corporation of India (1978 (1) ELT J 416 (SC)
3) CCE v. M.A. Financial Services (2006 (2) STR 350 (Tri-Kol)
4) Karnik Maritime Pvt. Ltd., v. CCE (2007 (6) STR 314 (Tri-Mum)
5) CCE v. Jai Laxmi Finance Co (2006 (3) STR 25)
6) CCE v. Indian Ispat Works (P) Ltd., (2006 (3) STR 161 (Tri-Del)
3. The learned SDR is not in a position to provide contra decisions.
4. On a careful consideration of the issue, I feel that there is enough justification for waiver of deposit of the amount demanded as the appellant has prima facie a strong case on merits. Hence, I order waiver of the deposit of the amount demanded and stay of recovery proceedings till the appeal is decided.
(Pronounced and dictated in open court)
