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2016 (12) TMI 393 - AT - Service TaxRefund claim by recipient of services - service tax discharged for rendering of ‘commercial and industrial construction service' in the bills raised during the execution of the project and, having ascertained in 2006 that such projects were not liable to tax owing to the exclusion provision in the definition of the service on section 65 (25b) of Finance Act, 1994, applied for refund of ₹ 2,53,65,007 charged from them towards service tax for the period from 1st September 2004 to 31st July 2006 - unjust enrichment - is claim of refund justified? - Held that: - The scheme of section 11B of Central Excise Act, 1944 does not specify that duty has to be credited to the Central Government as a pre-requisite for eligibility. It merely requires that duty be paid and, as far as recipient of service is concerned, that obligation is discharged by making over the amount in the invoice that separately identifies the tax component. The claimant is not required to enforce tax-payment; that is the responsibility of tax officials who are vested with power to recover such tax which has been collected in excess. With that specific empowerment available in the statute, the need to prove that provider has deposited the tax is rendered superfluous. It is sufficient to evince that invoices, incorporating the tax amount, has been honoured in full. The bank statement and invoices furnished do evidence that tax liability has been discharged along with consideration for services received. The impugned order has found that the payments made prior to September 2005 is barred by limitation. We hold that this finding is in accordance with the time-line laid down in section 11B of Finance Act, 1994, Learned Counsel for appellant attempted to forcefully argue that this, being tax not liable to be paid, is not a refund envisaged in section 11B of Central Excise Act, 1944. - it is well-settled that the powers of the Tribunal are circumscribed by the statute. The extraordinary powers vested in High Courts and the Hon'ble Supreme Court cannot be exercised by us. We, therefore, uphold the rejection of the claim for the period prior to September 2005 on grounds of limitation but allow the appeal to the extent of ₹ 1,08,95,273 to be refunded to appellant, being the subsequent period discharged amount. Appeal disposed off - decided partly in favor of appellant.
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