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2019 (8) TMI 1177 - HC - Service TaxRefund of service tax - logistic charges - period 2009-10 to 2010-11 - time limitation - Section 11B of the Act, 1944 - HELD THAT:- The controversy with regard to the issue as to whether a transaction would be amenable to “Service Tax” or “VAT” has drawn the attention of the Hon’ble Supreme Court in a number of cases. In the case of Bharat Sanchar Nigam Ltd vs Union of India [2006 (3) TMI 1 - SUPREME COURT], where the issue was as to whether on the sale of SIM card, Sales Tax could be leviable or the same was a service subjected to Service Tax , the Hon'ble Supreme Court after extensively dealing with all the constitutional provisions, in paragraph 87 of the judgment concluded that the same would depend upon the intention of the parties. But we are not called upon to adjudicate this issue in the present case in as much as only the question of refund of Service Tax has been raised by the appellant on the ground that VAT has already been levied by the Commercial Tax Authorities. From a bare perusal of Section 11B of the Act, 1944 it is clear that an application for refund has to be made within a period of one year from the relevant date. The appellant made an application for refund on 21/04/2012 for the refund of Service Tax deposited for the financial year 2009-10 and 2011-12 (April – June). The application for refund of Service Tax having been moved beyond the period of limitation prescribed, was rightly rejected and further the appellant had himself conceded before the CESTAT that Service Tax was not deposited under protest nor was there any provisional assessment. Even otherwise, the application for refund should have been moved within a period of one year, which was admittedly moved beyond the stipulated period. As already held by the Apex Court the application moved beyond the statutory period prescribed in Section 11-B of the Act, 1944, would be time barred and the claim of the appellant could not have been admissible on this score also. Appeal dismissed.
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