TMI Blog2010 (12) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mumbai-II vs. Allied Photographics India Ltd. [2004 -TMI - 46926 - SUPREME COURT OF INDIA] - ST/85 to 91/09 - - - Dated:- 14-12-2010 - Mr. P.G. Chacko, Shri S.S. Katiyar, Authorised Representative (SDR), for respondent All these appeals are directed against the appellate Commissioners order upholding the orders of the original authority. The appellants had got their residential houses built for them by the same contractor (builder), viz. M/s. Raj Udyog Ltd. The builder collected service tax from the appellants and issued receipts to them during May to October 2006 and thereafter credited the amounts to the exchequer during January to March 2007. The builders remittances of service tax to the government were under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed by the Tribunal on the same aspect. Apparently, they are also claiming support from the Honrable Supreme Courts judgment in National Winder vs. CCE, Allahabad 2003 (154) ELT 350 (SC), wherein it was held that, where duty was paid by a manufacturer under protest, the limitation of six months would not apply even to a claim for refund, made by the purchaser. In the said case, the apex court set aside the majority view taken by the Tribunals Larger Bench in National Winder vs. CCE, Allahabad 2000 (118) ELT 236 (Tribunal-LB). The apex court accepted the minority view to the effect that the purchaser of goods was also entitled to claim refund without time-bar where the payment of duty by the supplier (manufacturer) of the goods was u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had himself protested while paying duty to the manufacturer. In the instant case, it is submitted, the appellants paid service tax voluntarily, rather than under protest, to the builder and, therefore, they cannot claim refund of the tax unless they satisfy the twin requirements of Section 11B, which provision is applicable to any claim for refund of service tax by virtue of Section 83 of the Finance Act, 1994. The twin requirements referred to by the SDR are (a) claim to be filed within the prescribed period of limitation; (b) the burden of service tax to be shown not to have been passed on to any other person. In the instant case, according to the SDR, all the refund claims were filed beyond the period of one year from the relevant dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly issue involved in the present case is whether (a) the appellants were liable to pay service tax and (b) the refund claims filed by them are time-barred or not. On the first question, there is no decision in the impugned orders. On the second question, the contentions of the SDR are acceptable in principle. As rightly submitted by the learned SDR, the appellants, like buyers of excisable goods from manufacturers, are required to establish that their refund claims are within the statutory period of one year from the relevant date, viz. the date on which they paid service tax to the builder. As I have already indicated, the appellate Commissioners order is not clear on the dates of payment of service tax to the builder or on the dates o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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