TMI Blog2011 (9) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... four corners of law the party has accepted invoking the jurisdiction of the authority to refund within the period prescribed under the Act. - refund not granted - appeal dismissed. - CEA NO. 21 OF 2009 - - - Dated:- 22-9-2011 - N. KUMAR AND RAVI MALIMATH, JJ. JUDGMENT 1. The assessee has preferred this appeal challenging the order passed by the Tribunal which has held that a refund claim beyond the statutory time limit cannot be granted land it is barred by time. 2. The assessee is a Private Limited Company registered under the category of Banking and Financial Services. They are engaged in providing loans to customers. They are registered under the Finance Act, 1994 as service providers. The assessee paid service tax on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid and the amount claimed as refund is not an amount which falls within the Finance Act, 1994. It is only in respect of amounts which are paid under the Act, the amounts which are due under the Act, the period of limitation prescribed under Section 11B is attracted and therefore he submits that the authorities were not justified in holding that the claim for refund beyond the period of one year was barred by time. In respect of his contentions she relied on the Judgment of the Division Bench of this Court in Writ Appeal No. 2992-93/2009 where this Court has held that if the amount due claimed as refund did not fall within the Act, the provisions of Section 11B are not attracted. This general law of limitation is applicable and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of tax paid is not under protest and any payment made under the Act if refund is sought it has to be done within one year from the date of such payment. When once the period of limitation is prescribed under the Act the provisions of the General Law stand excluded; If the application is not filed within the time stipulated the claim would be time barred. Infact, the Constitution Bench of the apex Court in the case of Mafatlal Industries Ltd. v. Union of India had an occasion to go into this question and they have in categorical terms laid down the law on the point : ii. Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excise Act or the Customs Act, as the case may be. It is necessary, to emphasise in this behalf that the Act provides for a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal - which is not a departmental organ - but to this Court, which is a Civil Court, The proposition referred to by them reads as under: ii. Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
