TMI Blog2012 (11) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax was made on 1st December 2007 and refund claim was present on April 28, 2010 is also beyond one year from the date of payment. Appeal decides in favour of revenue - ST/120/2011-Mum - A/535/2012/CSTB/C-I - Dated:- 25-6-2012 - Ashok Jindal, Sahab Singh, JJ. For Appellant: Ms D M Durando, Deputy Commissioner (AR) For Respondent: Shri Anil Khanna, Adv. Per: Sahab Singh: This is an appeal filed by Revenue against Order-in-Appeal No. GOA/CEX/GSK/111/2010 dated 25.11.2010 passed by Commissioner of Customs, Central Excise Service Tax (Appeals) Goa. 2. M/s Andrew Telecommunication (I) Pct. Ltd. (hereinafter referred to as respondent) manufacture and export telecommunication products. They entered into an agency commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Finance Act. The respondent preferred an appeal before the Commissioner of Central Excise Customs (Appeals) Goa, who vide the impugned order allowed the appeal holding that the activity of marketing services for overseas principal was amounting to export of services and therefore they were not required to pay any service tax on the said activity. The Commissioner (Appeals) relied upon the following three decisions holding that the time limitation of Section 11B will not be applicable in the present case. [i] Collector of Customs, Madras Vs. Indo Swiss Synthetics Gem Mfg. Co. Ltd 2003 (162) ELT (Mad.) [ii] Nataraj and Vankat Associates 2010 (17) STR 3 (Mad.) [iii] ITC Limited 1993 (67) ELT 2 (S.C.) Revenue have filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nai reported in 2010(20) STR 663 (Tri.Chennai) wherein it was held by the Hon'ble Tribunal that the Tribunal is governed by the statutory provisions under the Central Excise Act, 1994 and only High Court have the powers in exercising writ jurisdiction under Article 226 of the Constitution of India. 4. Shri Anil Khanna the learned Advocate appearing for the respondent submitted that time limit under Section 11B is applicable only to those cases where refund pertains to any duty or tax paid by the assessee and the limitation will not be applicable when no tax is payable at all and the tax is paid due to misunderstanding of the law. He submitted that they were paying the service tax on the agency commission received by them from their princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Advocate has made alternative submission with reference to the compliance of Section 11B of the Central Excise Act, wherein the relevant date for computing the limitation is the date of filing the refund claim. He submitted that consequent upon the Board's Circular dated 24.02.2009, the respondent sent a letter addressed to the Superintendent of Central Excise, Mapusa range Goa, on 5 th March 2009 requesting therein that no service tax was required to be paid and stated that they want to take the credit of the service tax already paid. He submitted that this letter dt. 5 th March 2009 may be treated as their application for refund. He relied on the decision of woodworking Centre Vs. CCE Indore reported in 1996 (85) ELT 201 (Tri. Del. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent against the rejection of refund claim by the original authority relying upon the decisions of the Madras High Court in case of Collector of Customs Madras Vs. IndoSwiss Synthetics Gem Mfg. Co. Ltd. and Natraj and Vankat Associates Vs. Assistant Commissioner of Service Tax Chennai-II cited (supra) and also the Hon'ble Supreme Court decision in case of Union of India Vs. ITC Ltd. (supra) holding that when the tax is paid under mistake of law the provisions of Section 11B are not applicable. We find that the issue regarding the applicability of Section 11B of the Central Excise Act or Section 27 of the Customs Act was examined by the Hon'ble Supreme Court in case of Mafatlal Industries Ltd. Vs. Union of India reported in 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated as their application for refund. We find that the application for refund are to be filed with the Assistant Collector of Central Excise under Section 11B of the Act, whereas this letter has been filed with the Superintendent of Central Excise which is not as per the provisions of Section 11B of the Act. We also find from the facts on record that the last payment of the service tax was made on 1st December 2007 and this letter dated 5 th March 2009 is also beyond one year from the date of payment of last amount of service tax paid on 1st December 2007 and is also hit by the time limitation. Therefore this alternate plea and case laws cited also do not support the case of the respondent and the claim clearly hit by the time limit provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
