Order Date – 17 November 2023

Parties: M/s. Bansal Biscuits Private Limited Vs Commr. of Central Excise & Service Tax, Patna

Facts –

• The Appellant, M/s. Bansal Biscuits Private Limited, is a manufacturer of biscuits. They were paying Service Tax on „Reverse Charge basis‟ on GTA Services during the period July 2013 to March 2014, without noticing the exemption available under Notification No. 25/2012-ST dated 20/06/2012. After noticing the same they filed refund claim.
• A show cause notice issued rejecting the claim being time barred and issued a corrigendum adding further allegation that the relevant documents towards non-passing of the duty incidence to others was not submitted. After due process, the refund claim was rejected.

Issue –

• Whether the refund application is time barred?

Order –

• The Tribunal observed that on the same issue, in the case of Commr. of CGST, Ghaziabad Vs. Glaxo Smithkline Consumer Healthcare Ltd. Co. 2019 (28) G.S.T.L. 224 (Tri.-All.), the Tribunal has held that “the biscuits in question are edible biscuits and not gold biscuits. The eatable biscuits would definitely fall under the category of foodstuff.”
• Further it was held the CESTAT, Hyderabad vide its Final Order No. A/30082/2022 dated 05/09/2022 in the Credible Engg. Construction Vs. CCE, Hyderabad, that “The limitation prescribed under section 11B of the Excise Act would not be applicable if an amount is paid under a mistaken notion as it was not required to be paid towards any duty/tax.” Therefore, it is held that in the present case the provisions of Section 11B (time limit) would not be applicable.
• The Tribunal further held that the objection with regard to “Unjust Enrichment” cannot be sustained as the Revenue has not filed any Appeal by their grievance, if any about non-addressing of the unjust enrichment issue. Even otherwise, in the decision of the Tribunal in the case of Credible Engg.it is held that Section 11B Provisions are not applicable which would also include the provisions of “Unjust Enrichment‟ under Section 11B also not being applicable in respect of such refund cases.
• Hence the appeal is allowed.