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2016 (12) TMI 338 - AT - Service TaxRefund claim - service tax was wrongly paid - Section 66A of the Finance Act, 1994 was introduced w.e.f. 18.04.2006 and therefore service received from outside India prior to 18.04.2006 are not liable for service tax - whether the denial of refund claim on the ground of limitation as the refund claim was filed after the stipulated time period of one year from the relevant date as provided under Section 11B of Central Excise Act, 1944, justified? - Held that: - We find that the refund was sought for an amount of service tax paid by the appellant on the services received by them from the person located in the foreign country. We do agree that the service tax was not payable on such services by the appellant for the period prior to 18.04.2006, i.e. before enactment of Section 66A of the Finance Act, 1944. However the issue involved in the present case that in the case where the appellant filed the refund claim after one year from the relevant date (date of payment of service tax), whether limitation of one year as provided under Section 11B, will apply or otherwise. We find that at the time of payment even though the service tax was not payable but the appellant paid the amount as service tax only. Therefore the refund thereof is governed by the provisions of Section 11B of the Central Excise Act, 1944. The Ld. Counsel relied upon various decisions. However some of the judgments were given under the writ jurisdiction by the High Court under Articles 226 and 227. The Hon’ble Supreme Court in the case of Union of India Vs. Kirloskar Pneumatic Company [1996 (5) TMI 87 - SUPREME COURT OF INDIA] held that under the writ jurisdiction High Court cannot direct the customs authority to ignore the time limit prescribed under Section 27 of the Act. The refund claim filed after one year from relevant date, i.e. from the date of payment of service tax in the present case is clearly time barred. We therefore upheld the impugned order - appeal dismissed - decided against appellant-assessee.
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