ORDER :

(M. Zothankhuma, J)

1. Heard Mr. S. C. Keyal, learned Senior Counsel for the appellant and Mr. Lakshmi Narasimha, learned counsel for the respondents in the both the appeals.

2. The two appeals are being disposed of by this common order, in view of the fact that the issue to be decided in both the cases is the same.

3. The basic issue is whether Section 11B of the Central Excise Act, 1944 (hereinafter referred to as ‘the Act’) bars the refund of Education Cess (EC) and Secondary and Higher Education Cess (SHEC), which had been mistakenly paid by the respondents to the appellant.

This Court admitted the appeal on the following two substantial questions of law, which are as follows:-

“(i) Whether the provisions of Section 11B of the Central Excise Act, 1944, which prescribes a statutory time limit for claiming refund, are applicable in cases where tax or cess was paid under a mistake of law and whether refund claims in such circumstances are time barred even when the payment was made erroneously or without legal authority?

(ii) Whether the Appellate Tribunal erred in law in ignoring the statutory presumption of unjust enrichment embedded in Section 11B of the Central Excise Act, 1944, and in granting refund on the basis of a mere CA certificate but without recording a categorical finding supported by substantive evidence, whereas the respondent has failed to produce tangible and corroborative evidence that the incidence of EC and SHEC has not been passed on to any other person?”

4. The brief facts of the case is that the respondents are engaged in the exploration and production of petroleum crude, falling under CTH 2709 of the Central Excise Tariff Act, 1985. The crude oil produced by the respondents is chargeable to nil rate of excise duty. However, the respondents have been paying Natural Calamity Contingent Duty (NCCD), in terms of Section 136 of the Act, read with the 7^th Schedule of the Finance Act, 2001. Section 91 read with Section 93 of the Finance Act, 2004 and Section 136 read with Section 138 of the Finance Act, 2007, provides for levy of Education Cess (EC), and Secondary & Higher Education Cess (SHEC) on all excisable goods, specified in the 1^st Schedule to the Central Excise Tariff Act, 1985. The respondents were also required to pay Oil Industry Development (OID) Cess, which was levied under Section 15(1) of the Oil Industry (Development) Act, 1974, on the crude oil produced by them. The respondents were however not required to pay EC and SHEC on the OID cess, if the same had been paid to the Ministry of Oil and Natural Gas, Government of India. However, due to a mistaken notion that the same was required to be paid, the respondents had paid EC and SHEC to the appellant.

5. On the respondents coming to learn that they had mistakenly paid EC and SHEC to the appellant, they prayed for a refund under Section 11B of the Act. The same being denied by the appellant, the respondents approached the Adjudicating Authority, which is the Assistant Commissioner of Central Excise. The claim for refund being rejected by the Adjudicatory Authority, an appeal was filed before the Appellate Authority, that is the Commissioner (Appeals), Custom, Central Excise and Service Tax (NER), Guwahati, vide Appeal No. 42/DIB/CE(A)/GHY/15.

6. The Commissioner (Appeals), Guwahati thereafter disposed of Appeal No. 42/DIB/CE(A)/GHY/15, vide order dated 31.03.2015, by holding that the respondents were liable to be given refund of EC and SHEC for the last 1 year, which was paid by mistake. However, the claim for refund was to be limited to the application for refund being made before expiry of one year prior to the relevant date, in terms of Section 11B of the Act. At the same time, the Commissioner (Appeals) also made a finding with regard to whether the respondents had passed on the liability of the payment of EC and SHEC to the consumers, by holding that the burden of EC and SHEC on the OID Cess had not been passed on to the consumers by the resp