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2022 (8) TMI 166 - Service Tax
Refund claim - time limitation - excess payment of service tax - rejection of refund claim as barred by limitation of time on the ground of delay in filing such application by one day beyond the period of one year from the relevant date - Appellant’s claim is that for the purpose of Section 11B of the Central Excise Act, 1944, one year from the relevant date is excluding the date of payment of duty and hence it is their submission that there is no delay in filing of the refund application - Section 11B of the Central Excise Act, 1944 - HELD THAT:- Hon’ble Supreme Court in the case of TARUN PRASAD CHATTERJEE VERSUS DINANATH SHARMA [2000 (10) TMI 930 - SUPREME COURT] has held that Section 9 of the General Clauses Act, 1897 gives statutory recognition to the well-established principle applicable to the construction of statutes that ordinarily in computing the period of time preserved, the rule observed is to exclude the first and include the last day.
Further the Tribunal in the case of COLLECTOR OF CENTRAL EXCISE VERSUS S. AIL, ROURKELA STEEL PLANT [1991 (9) TMI 212 - CEGAT, CALCUTTA] have decided that the provisions of Limitation Act and the General Clauses Act are to be applied for interpreting certain general situations like the period of limitation prescribed under any Act and it was held that the point raised in the appeal before us that the date of computation can never be by excluding 29-2-1988, has got no legal basis. Similarly, nothing much turns on the argument that since the Act specifically provides the relevant date which in the present case is the date of payment of duty, i.e. date of debit in the P.L.A., the Limitation Act cannot be made applicable. The fact that the relevant date has been defined in the Central Excises and Salt Act does not affect a general principle as to how to compute the period of limitation. The provisions of the Limitation Act and the General Clauses Act are to be applied for interpreting certain general situations like the period of limitation prescribed under any act.
Further the judgment of the Hon’ble Calcutta high Court in the case of UNION OF INDIA (COMMISSIONER OF CUSTOMS, EXPORT) VERSUS BENGAL RUBY MICA SUPPLY CO. [2006 (8) TMI 686 - CALCUTTA HIGH COURT] as relied upon by the Respondents was a case of incorrect assessment by the Customs Authorities and the jurisdiction of the department to make assessment was challenged wherein the High Court held that the department was in rights to do the assessment and mere mistake in arriving at the value of the goods, cannot make the entire assessment invalid and thus the consequential refund was also disallowed.
The period of limitation should be calculated as per the General Clauses Act - the refund application has been filed within time and rejection of refund is incorrect and needs to be set aside.
Appeal allowed - decided in favor of appellant.